



DETh^ENCE 






OF 



COL, WM. S, FISH, 



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Submitted bv his Counsel, 



MILTON WHITNEY, Esq. 






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WASHINGTON, April 11, 1864. 



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OF 



COL. WM. S. FISH, 



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Submitted by his Counsel, 



MILTON WHITNEY, Esq 




WASHINGTON, April 11, 1864. 



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GENERAL COURT MARTIAL. 



WASHINGTON, Apuil 11th, 1864. 

In the matter of the United States against Col. William S. 
Fish, the accused reserving to himself the right to call upon 
the Court to strike from the record all the testimony offered 
upon the pait of the prosecution, not followed up by- the pro- 
per evidence to connect him with the transactions in refer- 
ence to which such testimony has been offered, provided the 
same shall be relied upon by the prosecution, asks leave to 
submit to the consideration of the Conrt the followino- sno- 
gestions in response to the charges and specifications preferred 
against him, and on which he has been placed upon trial be- 
fore this tribunal. 

The charges advanced by the prosecution are four in num- 
ber : 

1st. "Conduct prejudicial to good order and military dis- 
cipline." 

2d. "Using false accounts and vouchers knowing the same 
to contain false statements, for the purpose of obtaining the 
approval of false and fraudulent claims, against the United 
States, contrary to the statute in such case made and pro- 
vided." 

3d. "Violation of the thirty-ninth article of war." 
4th. "'Conduct unbecoming an officer and a gentleman " 
To the first charge there are seventeen specifications; to 
the second charge there are three specifications ; to the third 
charge one, and to the fourth charge there are five specifica- 
tions. The third and twelfth specifications to the first charo;e 
are abandoned by the prosecution, leaving the remainino- fif- 
teen specifications of the first charge, together with all of the 
specifications of the remaining 2d, 3d and 4th charges to be 
passed upon by tlie Court. 

To these specifications, I propose to call your attention, and 
to the evidence bearing upon them in the order in which thev 
are set forth in the pleadings Upon the part of the prosecution. 



Before proceeding, however, to the discharge of this duty, I 
crave your indulgence whilst I briefly refer to some general 
propositions, growing out of my relation to this investiga- 
tion, and to certain general principles, by which I respectfully 
submit you are to be governed, in arriving at your final con- 
clusion in reference to the merits of this cause. 

Early in the spring of 1863, I was detailed to the impor- 
tant and responsible position of Provost Marshal of the Mid- 
dle Department 8th Army Corps — my location being in the 
city of Baltimore, State of Maryland I was fresh from the 
field of active duty, where I had used my utmost endeavors to 
discharge the true duties of a soldier, battling for the exis- 
tence of a country and a Government established by our 
fathers, and handed down to us as a sacred legacy in trust for 
our children and our children's children. I brought to the 
discharge of the duties of that office, no past experience or 
present practical knowledge of its workings. I entered upon 
it with but one single purpose, that of serving my country in 
that sphere according to the best of my untried abilities, and 
of doing all within my power to assist in putting down the 
present unholy rebellion. If in the history of my adminis- 
tration of its affairs, it should be found that I have erred in 
action, I am confident it will be ascertained, that those errors 
have occurred in my zeal to serve that country, in whose cause 
I had earnestly an(l warmly enlisted. The locality in which 
I was thrown, rendered the duties of the office more delicate, 
onerous and difficult, than any other locality that could be 
selected within the territory occupied and held by the Federal 
Government It was a city in which treason stalked forth at 
noon day. Traitors swarmed its streets, and a supporter of 
his Government found himself environed on every side, with 
deep, cunning, bitter and relentless foes. Secession and south- 
ern sym{)athy were the fashionable brands of society, the 
standards of respectability, and the passports to Baltimore 
favor — no epithets were too vile — man was transformed to a 
thing, and the soldier of the Union, with the flag of our com- 
mon country, was the assassin's mark. Subjugated though 
they had been by the strong arm of the government, they were 
yet as the wild beast at bay, waiting but for the favorable op- 
portunity to spring upon the much coveted prey. Its near- 
ness to the seat of government, its proximity to the rebel 
capital, the unusual number of troops congregated in and 
around the city, the large number of people who had embark- 



5 

ed in the Southern cause, leaving their friends behind them, 
and a multitude of other causes, I have not the time to men- 
tion, all combined to make the position one of extreme trial 
aad difficulty, as well as of danger. Under these, and other 
circumstances of an unpropitious character, I entered upon 
the discharge of the duties of Provost Marshal, and I did it 
with a full and fixed determination to extend to the Union 
citizens of Baltimore that protection which they required, and 
which they claimed, at the hands of the government authori- 
ties. How I succeeded in meeting the expectations of the 
the Union portion of the population, and protecting them in 
the enjoyment of their rights, has been evidenced by the high- 
ly respectable citizens who have appeared before you. Enter- 
ing upon my duties, actuated by such motives, and giving 
them a practical effect in rav official conduct, I was not long 
in surrounding myself with a band of enemies, who were 
bent upon my destruction. 

The howl of indignation was raised, the blood hounds of 
secession were let loose upon me, and ray name became as 
odiou-* to traitors, as did that of GJ-enl. Butler to the '■^London 
Times.'' 

As early as the summer of 186">, a combination was formed 
against me, unheard of efforts were put forth, government 
detectives were employed and sent from State to State, human 
ingenuity was exhausted, promises extended, threats made, pro- 
fessional pride was embarked, ambitious hopes operated as a 
motive power, envy and jealousy were present in the combina- 
tion, open hatred and malice were there in disguise, treachery 
to truth was there, and moving about unseen, was by sign and 
signal giving direction to the movements, they all labored 
and toiled, and when the curtain rose, it disclosed to view 
some wandering jews on a pilgrimage to Washington, who 
had left the rebel territory on a journey tea foreign land, but 
who were willing to remain many long months in this the 
land of their pilgrimage, in order to procure my conviction, 
that they might recover the money which they had paid to 
one of their own peculiar class. They came to Washington 
and made their affidavits. 

There were found detectives who for the sake of promoting 
their own cause, and winning themselves into government 
favor, by making a show of diligence and smartness, were ready 
to turn a willing ear to those whom they would not trust in 
the most common affairs of life, and from whom they would 



turn in disgust with a curse upon their lips, upon any other 
subject, except one involvine; the honor, truth and integrity 
of a soldier of the Union. But their labors failed, the iu- 
trigues of ray enemies fell short of the destined mark, and al- 
though the results of these extraordinary efforts were in the 
hands of the government officials six months ago, the material 
was pot deemed worthy with which to strike the blow, at one 
whom they knew to have been a true and trusted soldier. 

It remained for treason at home to accomplish what they 
had commenced. It remained for those who would build up 
their own foitunes by tearing others down, who sought to sup- 
plant that they themselves might reach the desired point, and 
who to save their own necks would place the halter around 
the neck of their neighbor, conversations were distorted from 
their true meaning, actions misconstrued, false motives attri- 
buted, and the faults and short comings of others laid lo my 
door — and the spring of 1864 finds the work accomplished, 
I am arrested and thrown into prison, and I call upon the 
members of this Court individually to say whether within 
their own experience, either in civil or military life, they have 
found a precedent for the proceedings which ensued. No (Ef- 
forts were spared, and in the midst of my enemies, public no- 
tices appeared, notifying all of the place where they could 
give in their testimony against me. Lieut. Parker was there 
with his two oaths, and supported by the certificate of credi- 
bility of Capt. French. Others were there making their 
statements under influences of which we know nothing, and 
upon the question, as to who was the master genius and mov 
ing spirit of those proceedings, I leave this Court to deter- 
mine. Months of time and labor have been expended, money 
lavished like water — the most absurd rumors set afloat, every 
thing distorted, prejudice, hatred, envy, malice and foul hy- 
pocrisy have all been called into requisition: a jest hhs been 
turned into a stern reality, as though I could publish to the 
world my own infamy. The loaning to my Orderly of a sil- 
ver watch of the value of $15, in an open and public manner, 
to enable him to perform his duties, has been construed into 
an act of fraud, as though I would seek such an avenue 
through which to enrich myself by plundering others; im- 
pressions made upon the jaundiced mind have been treated as 
facts, and he who was detailed as my assistant, and should 
have bc^n my supporter whilst I was engaged in the dis- 
charge of my arduous duties, under the garb of friendship 



was mousing about to ascertain where he could inflict the fatal 
stab. The person of my wife was not secure against his in- 
trigues, a ad the wardrobe of my aged mother was alike made 
the field of his gallant operations. The country has been 
scoured from State to State, the services of the most experienc- 
ed detectives have been called into action, Jew and Grentile, 
traitors to friends, and traitors to their country, and those 
without a country and without a God have alike been arrayed 
against me — the country has been made to ring with the 
enormity of my offences, society from high to low has been 
searched, my footsteps dogged from door to door, and their 
efforts have at last culminated. The bill of indictment is now 
presented, and though shaped and put in form by legal hands, 
it carries with it unmistakeable evidence of its paternity, and 
I stand before you to-day, crippled in my efforts by close 
confinement, with my lips sealed to meet and answer and ex- 
plain all that these extraordinary and combined efforts could 
bring against me. If this was a cause involving dollars and 
cents, in which five dollars was to be made or lost, the laws of 
the land would allow me to speak and explain, but when the 
interests of all I hold dear and sacred this side of the grave 
are involved — when my reputation as a man and my honor as 
a soldier is at stake, I am struck dumb, and my lips which 
alone could afford a satisfactory explanation, are closed. And 
I ask you the question, if there is a man in the country, hold- 
ing such a position, who could have his record for such a time 
made up under such circumstances examined, who would not 
require his own statements to explain what otherwise might 
not be understood by those totally unacquainted with the 
circumstances. Is there an official from the highest to the 
lowest, who has transacted any amount of business, whose re- 
cord could be subjected to the one-sided examination of others 
unacquainted with the history of each case, without requiring 
a personal explanation, to make clear what otherwise might 
seem questionable and in doubt, and when that official is so 
situated as to necessitate reliance and confidence in others, and 
those not even of his own choice and selection, but those detailed 
by a superior officer, with what greater force does this sugges- 
tion apply. I appeal to the experience of each member of this 
Court and ask him to test the truth of this by reference to his 
own past actions. If your own individual acts require per- 
sonal explanation, how careful will you be when you come to 
examine into the actions of those whom I was bound to trust. 



Would you ruin a Quartermaster, because he signs his name to 
an account in which his clerk may have made an error against 
the Government ? Would you ruin a member of the Cabinet 
at the head of either department of the Government, because 
he signed a warrant made out by his clerk, even if it should 
turn out that the warrant was illegal ? As well might you 
send a President of a Bank to the penitentiary for a fraud per- 
petrated by his Cashier. 

But although I appear before you under these disadvantages, 
the law allows me to place upon the records of this Court, the 
solemn asservation of ray innocence. That asservation thus 
made is by the rules of law and human action, raised to the 
dignity of a presumption of my innocence. That presumption 
is evidence and becomes my property, and can only be wrested 
from me by the production of evidence of such a character, 
not explainable upon any hypothesis than that of my guilt. 
For if the evidence brought against a party can be explained 
upon any other theory than that of his guilt, then the law in 
its humanity and justice requires that theory to be adopted. 

It is incumbent upon the government to establish by evi- 
dence the charges made against me, that evidence must amount 
to proof ; the burden is upon the government, and nothing is to 
be assumed in its favor and against the accused, and 1 beg 
leave to suggest, that you are not here as in the trial of a 
cause involving dollars and cents, to be governed by a pre- 
ponderance of the testimony, you are not to weigh the testi- 
mony upon the one side and upon the otber, and to ascertain 
upon which side is to be found the preponderance and decide 
accordingly, but you are to grapple with all the testimony in 
the case, and selecting that upon which you can rely as true 
and accurate, as the basis of your action, you are to ask your- 
selves the question, assuming that testimony thus selected as 
worthy of full credit to be true, can the party be innocent ? 
Can we explain it upon the theory of his innocence ? If you 
can, no further inquiries are to be made and the party must 
be acquitted. 

This legal presumption of innocence is to be regarded by the 
jury as matter of evidence, to the benefit of which the party is 
entitled, and where a charge is to be proved by circumstantial 
evidence, the proof ought to be not only consistent with the 
prisonei's guilt, but inconsistent with any other rational con- 
clusion. 1st Greenleaf on Evidence^ Sec. 34. You will I trust, 
pardon me for detaining you in reference to these general 



observations and general principles, but I feel it a duty to 
myself, and more especially to those dependent upon me, that 
as the members of this Court enter upon the discharge of that 
portion of their duty, that is to decide my future destiny on 
earth, tliat I should ask them to carry with them, and have 
duly impressed upon their minds, these rules and principles, 
and so doing, they shall enter upon a careful and critical 
analysis of the evidence in this cause, remembering at the 
same time, the appearance of each witness whose testimony is 
relied upon, his manner in testifying, his opportunities of 
observation, the probabilities of his statements, the condition 
of his mind to receive a correct impression or otherwise of the 
events to which he is called to testify, and all the other cir- 
cumstances that cluster around a witness in a tribunal of 
justice, that go to make up the measure of reliability with 
which his testimony may be regarded. 

\sf Specification. — The 1st specification relied upon, is that 
I made 'a false unci fraicdulent claim upon the government, for 
the loss of a certain horse which I claimed to be mine, and 
which had been lost in the service of the United States, when 
I knew said horse was the property of the United States, and 
that my statement in relation thereto was false and fraudulent. 
The offence charged, and upon which you are alone to pass, is 
one of a deliberate and predetermined fraud upon my part, 
any irregularity upon my part or any departure from the 
strict letter of military law, either by myself or by my supe- 
rior officer in reference to this matter is not involved in this 
issue, and upon which you are to pass, the issue made by the 
allegation, and the plea is one of corrupt intent upon my part, 
by fraud and deceit to cheat the government. 

This is alone what you are to determine, evidence has been 
offered to show that after my return from the campaign of 
1862, I did apply to the department to be paid for the loss of 
H certain horse. I did this upon the recommendation of the 
General commanding, and who certified that all of the facts 
stated in my application were true. No evidence has been 
offered to show for what horse it was I received compensation. 
The pleadings state that it was a horse captured from the 
enemy, and was the property of the United States ; and evi- 
dence has been offered to show that a horse captured at Moor- 
field, Va., was in my possession, but no evidence whatever 
has been adduced to show that to have been the horse for 
which I was paid. 



10 

*»"'Oii the contrary, Capt. French, the onl}' witness asked for 
the purpose of identifying tliat horse with the one for which 
I was paid, states, " that lie always understood it as another 
horse for which I received compensation, that I had another 
stallion at one time, and he thought that was the one I got 
paid for." But admit, if you please, everything ; that it was 
the same horse for which I received pay, what is there in tlie 
evidence to justify the charge that I knew the horse to be the 
property of the United States, and that by fraud and deceit 
I obtained pay for it ? I'he evidence is conclusive, that the 
horse was given to me by the Major commanding the batallion, 
in place of my own, which had been rendered useless by con- 
stant labor, and abandoned, and the stallion was shot by the 
enemy and likewise abandoned. The officer commanding, did 
the same thing with the other officers who weie situated like 
myself. 

This occurred two years ago, and if those who have been 
hunting and hounding me, spending their time and money to 
bring me to disgrace, had shown an equal zeal in their coun- 
try's cause as they have in this, had broken down as many 
horses as I have done in the service of my country, had ridden 
as many miles as I have, by night as well as by day, and 
shared with me the dangers and perils of that campaign, the 
valuable time of tried soldiers, whose services are loudly called 
for to again meet the foe, would not now be consumed in 
making an examination, into the propriety of the superior of- 
ficer upon the field in active duty, making such arrangements 
as he thought proper in the mounting of his subordinates, 
whose services he required at every step. There are those who 
think they can sit by their parlor fires and fight battles hun- 
dreds of miles distant, command armies, direct generals, and 
order movements. If the battle is won, the credit is their's, 
they planned a:id fought the battle ; if lost, they share no re- 
sponsibility, it was fought against their judgment. So with 
certain individuals who may sit alone in their own rooms, 
with a book of Regulations before them, and talk very mathe- 
matically as to what should be done under certain circum- 
stances, and yet, nine chances out of ten, put them in the 
same circumstances, and you would find them much wider of 
the standard, than he whose conduct they are criticising. To 
judge of a man's action, you must throw yourself into his posi- 
tion, and judge of him from that stand-point. But I do not 
desire to dwell upon this specification longer ; by whose in- 



11 

diistry it has been brought forward at this late day, lam una,^ . 
ble to say. All I can say is, that I had a most valuable horsel 
when I entered the service — provided myself with two others 
at my own expense — with the approval of my Commanding' 
Greneral, have received pay for one, and the government has 
received the benefit of the otliers. 

'2d Specification. — The 2d specification charges that I re- 
ceived into my possession a certain clustered diamond breast 
pin, seized from alleged blockade runners, by United States 
detective officers, and did, in February, 1863, wrongfully 
convert the same to my own use. Before you proceed to ex- 
amine the evidence upon tliis point, I ask you to carefully 
note the nature of the charge. To my mind, it unfolds to a 
great extent, the manner in which these charges have origina- 
ted No time specified wlten I received it into my possession, 
neither from whom it was seized, when seized, where or by 
whom it was seized, but yet a diamond pin had been seen in 
my possession. 

Capt. French had talked with me about it, and without any 
facts, the presumption is jumped at that I obtained it by 
fraud. No facts, no data, no evidence to go upon, and hence 
the generality of the charge ; no pretence whatever that any 
diamonds were seized before the month of March ; no person 
produced wlio made any such seizure; no person produced 
from whom any such seizure was made ; nor any person who 
ever had any knowledge of any such seizure; but still a pin had 
been seen in my possession and that was sufficient. Nothing 
more was necessary with those who would attribute a false 
motive to any action, and that was the position in which I 
was placed. If I gave food to a hungry child, they would say 
my motive was to choke it ; if I released a party, it was fa- 
voritism ; if I held him, it was tyranny ; if I held a party till 
I could satisfy myself as to the merits of the case, i held him 
for an improper motive ; if I released him after being satis- 
fied, I did it for a consideration. Everybod}' understood the 
duty of Provost Marshal except myself ; every one knew 
the merits of each case except myself. If I boarded at the 
Eutaw Hoase, where the entire staff and the Greneral himself 
boarded, my expenses, in the language of Ca[)t. Parker, must 
have been, as he knew of his own knowledge, twice the 
amount of ray pay ; and therefore, if I had a d'amond pin, it 
must have been seized from some unknown blockade runner, 
at some unknown time, at some unknown place, and by some- 



unknown person, and hence the charge found in the 2d speci- 
fication. 

The evidence offered in relation to this specification is more 
fatal to the prosecution than the specification iiself. Capt. 
French is called as a witness to substantiate this specification. 
He is asked in reference to a conversation he had with me 
about a cluster diamond pin, and this portion of his testimony 
exhibits his volunteered effort to condemn me. He goes on to 
narrate a conversation he had with me, in which I said I was 
going to send it to New York and get paste diamonds put in, 
and the real ones consolidated in a ring, and he thinks I after- 
wards told hira I had it returned to me because I was afraid 
to have it done. There is no specification charging me with 
any ofience in connection with this, but I did not object, be- 
cause I knew the facts in reference to this matter — and I 
knew it was only necessary to give some people sufficient rope 
and they would become their own executioners. Unfortun- 
ately for Capt. French, there are other facts upon the record 
and other witnesses in reference to this diamond pin beside 
Capt. French and his testimony. He goes on to say I knew it 
was captured property ; he did not know who cajttured it, 
when captured, from whom, or anything about it, only that it 
was captured by a detective — no detective is introduced to 
show the capture, and unfortunately lor Capt. French no dia- 
mond pin was ever captured by any detective whilst I was 
Provost Marshal, and therefore no evidence was introduced 
or could be introduced to prove any such capture. The only 
pins in my office as captured property were the two taken 
from Gabriel Meyers at the Point of Rocks, and these were not 
captured by any detective, but by Provost Marshal Irwin of 
that place, and this was in the month of March, whilst Capt. 
French saw the cluster pin in my possession in the month of 
January preceding. The two rings and two pins captured 
from Meyers at the Point of Rocks, the Court will find in my 
report to the Greneral, and accounted for in my account offer- 
ed in evidence by the prosecution. 

Alike unfortunate for Capt. French is it in reference to the 
cluster diamond, that the prosecution has produced another 
witness in the person of Col. Almey. He saw the pin in my 
possession in the month of January, 18fi3, and instead of my 
being anxious to send it by him to New York to have paste 
diamonds inserted, he tells you it was at his own suggestion, 
and in consequence of his representations that I was induced 



13 

to send it to New York, aad that I had it returned to me not 
because, as Capt. French would have you believe, I Avas afraid 
of the paste operation^ but I had it returned on account of the 
valuation put upon it by tlie party there ; as also my letter 
shows, offered in evidence by the prosecution. 

The prosecution also proved by Col. Almey my statement 
as to how I came by that pin, they have not disproved that 
statement, and having made it their own evidence, are bound 
by it. Kead from Roscoe's Criminal Evidence, p. 51. 

We also have the testimony of Adjutant Walker, who saw 
this same pin in my possession before I entered u})0n the du- 
ties of Provost Marshal, and who received instructions from 
me, when in Virginia, long before any mention was made of 
this pin, as to something being sewn up in my ])ants that 
would furnish me relief in case I was captured. Fortunately 
was it for me, in this instance, that I have not to rely upon a 
total failure of the prosecution to make out this charge, but 
have been enabled to prove conclusively a negative to the 
whole matter. No man is bound to prove his innocence ; his 
guilt must be established beyond all doubt, and until that is 
done, he is not called upon to open his lips. Col, Almey tells 
you that never a word passed between us in relation to having 
paste diamonds substituted ; his advice to me was to procure 
for it a first-class stone, and it was in consequence of his ad- 
vice, he tells you, I sent it to New York, and failing there, I 
afterwards had it done by Mr. Meredith, in Baltimore. 

ith Specification. — The 3d specification having been aban- 
doned, the next in order is the 4th, which charges that in or 
about the month of April, 1863, I caused certain goods to be 
seized, belonging to Mrs, Otey and Miss Selden, and received 
the same into my possession and wrongfully converted a por- 
tion of the same to my own use, and that all of said goods 
were libelled, and that I neglected to deliver up or account to the 
proper authority for a portion thereof. As to what goods were 
actually libelled in this case does not appear from the evidence 
introduced, whether they were libelled as alleged in the specifi- 
cation is not proven, there is no evidence of this fact. Mr. 
Thayer called for the prosecution is not able to state. The 
papers are lost. He talks of discrepancies existing but what 
they were, he is unable to say. There seems to have been 
discrepancies from first to last in reference to these goods, 
every witness called has testified to discrepancies, but in what 
they consisted no one is able to say. The difiiculty in the 



14 

matter was t])at the transaction itself ori<j:;inated in fraud upon 
the part of the ladies named, and that fraud has caused con- 
fusion and discrepancies from the betjjinning to the end of this 
transaction. If those papers are lost and they are unable to 
prove what goods were libelled, I am not to suffer. The fault 
is theirs, not mine. It is sufficient for me that they have not 
the evidence to show what goods were libelled^, and therefore 
cannot sustain the allegation that they were all libelled. The 
charge that I refused or neglected to deliver up a portion of 
the goods to the proper authorities is alike unsustained. The 
first proceeding was an information filed by rae in Court to 
obtain condemnation of these goods. The witness, Mr. Thayer, 
is asked the question, "Had Ooi. Fish been personally called 
upon to furnish information in this case?" The Court must 
readily perceive the bearing of the question, that I was an un- 
willing actor in the bringing of the goods into Court, as 
though I had apprehensions and fears, and only at the solici- 
tation of the authorities had I placed tliis matter before the 
Court. Now mark the answer : " He had not ; the case was 
commenced in pursuance of an unsolicited report from the 
Provost Marshal's office." Thus placing myself in the atti- 
tude of voluntarily taking into Court a lot of goods out of 
which I had been pilfering, when I well knew they would be 
met by the bills of purchase held by the parties who claimed 
the goods. Instead of showing any neglect on my pait, or 
unwillingness to deliver up these goods, the evidence shows 
that I was the first mover in bringing them into Court, and 
anxious that they should be proceeded against. Although 
this may be a technical objection to the charge as set forth in 
the specification, and fatal to the same, 1 do not desire to stand 
upon any such ground I wish all the facts to be canvassed, 
and let us therefore examine carefully the evidence bearing 
upon it. The case of the prosecution is sought to be main- 
tained upon two grounds : One, the power of identity ; and 
the other, the testimony of Capt French, as to what he calls 
the substance of a conversation. But suppose we admit the 
identity and the substance of the conversation for the sake of 
the argument ; su|)pose we admit that the goods found in 
Connecticut and Ohio were the same as those belonging to 
that lot ; let us admit it now for a moment, if you please, in 
order to discover in what position the prosecution would stand 
in a legal point of view, even with such a state of facts ; sus- 
picions, opinions, probabilities are to convict no man — you 



15 

may have your suspicions, probabilities and ojtinions — testi- 
mony alone can cowy'vt. We are to be governed by certain 
general and well understood rules and principles of Imman 
actioA — those which the experience and observation of men 
for centuries have established as safe general rules, by which 
man is to be governed and controlled in his intercourse with 
his fellow-man, and upon which human action may with 
safety be based. These principles are general in their appli- 
cation ; they become as much law, by which society is to be 
governed, as the act written upon the statute book ; they are 
to be applied to every one, and its violation in any one case, 
is a far greater injury to the cause of public justice tban the 
discharge of a party, however guilty. In the one case, the 
guilty may escape, but the uniformity of the rule by which 
justice is to be administered to any one is maintained. In 
the other case, the guilty may be punished in that individual 
case, but the uniformity of the rule b}' which both you and I 
are to be juaged, is violated, the safeguards of society are de- 
stroyed, and the trial of life, liberty or reputation becomes 
more a matter of hazard or chance, than the decision of facts 
upon well-known and well-settled principles of action, which, 
by their wisdom, uniformity and universality, become public 
safeguards by which every individual member of the commu- 
nitjt is to be protected in the enjoyment of his rights, and 
hence the origin of the admirable French rule in the adminis- 
tration of justice, which allows a jury, whatever may be their 
moral convictions as to the guilt of a party, but where legal 
requirements have not been met in order to enable them to 
maintain the inviolability of the rules to return a verdict, not 
saying that the party is not guilty, but not proved guilty. 
Now let us go far beyond all tliat can be claimed in tliis case. 
(Suppose a robbery has been committed, and the property stolen 
is afterwards found in the actual possession of a party accused 
of the crime of the robbery, what is the rule by which he is to 
be adjudged and which the wisdom and experience of our 
fathero has established as applicable to every one in his situa- 
tion ? 

If the possession is immediately after the robbery, the 
party may be called upon to explain his possession of the pro- 
perty proved to have been stolen, but not otherwise ; and in 
this connection let me read to you, without quoting it at 
length, the law as laid down in Roscoe's Criminal hvidence. 
page 18. Thus, where stolen property was found in the pos- 



16 

session of a party sixteen months afterwards, he could not be 
called upon to say anything about it, no presumption what- 
ever could be raised against him. But coming to the present 
case, and admitting all that could be claimed, that the gpods 
found in Ohio and Connecticut were one and the same goods 
with those seized as alleged ; sup[)ose I saw proper to stand 
here to-day and say, that the goods found in those places, one 
year afterwards were the same taken from the parties named, 
would it come up to the standard required? Could it come 
within the rules established by which 3'ou and I have a right 
to be governed? I talk not of suspicion, probability or sur- 
mise ; but would it furnish that legal testimony which these 
well established and universal rules and principles imperi- 
tively demand, and which, it violated, jeopaids the right of 
every man ? And let us look to the record in this case, and 
see if I am not sustained by the authority of the prosecution 
itself. Wlien the testimony was oifered of the finding of these 
goods in Ohio and Connecticut, I caused to be entered upon 
the record the following statement : 

Page 34. — " Counsel for accused remarked that he did not 
object to this testimony, supposing it was the intention of the 
prosecution to follow it up by evidence connecting Col. Fish 
with the removal of these goods to Mystic and Elyria, but if 
not so connected, would be objected to." To which the 
Judge Advocate re[)lied as follows : 

" The Judge Advocate stated that he proposed to connect 
Cql. Fish with the unlawful taking of these goods." And 
has there been a tittle of such evidence introduced ? It is as 
barren of such testimony os it is to bring home to my knowl- 
e<^lge the contracts made by Ullman with parties outside, and 
by which he rol)bed them of their money. The theory upon 
which the persecution started out was, that when those goods 
were examined, a portion of them afterwards seized were 
taken by me and placed in my private drawer ; that I then and 
there formed the design ot pilfering those goods and appropri- 
ating the same to my own use. And notice hoAv skilfully 
executed was the testimony of Capt. French upon this point. 
Why did he not tell you frankly, and without reserve, all 
that did occur upon that occasion and the reasons for it ? He 
is asked, " Did you see Col. Fish do anything with any of the 
goods?" He answers, "Yes; I saw him lay some down at 
the end of the trunk, and afterwards put them in his drawer." 
In what an ominous manner the testimony was given, as 



17 

though, there was something sinister in the .act,, which after- 
wards turns out to have been an act of negessity, performed 
by myself and others present. But I shall have occasion to 
comment hereafter upon the testimony of this witness in this 
connection. The point to which I now desire to call your at- 
tention to, is the entire absence of the testimony that was an- 
nounced would be oifered, and whicii would be necessary to 
make the other testimony competent and admissable, and to 
connect me with the unlawful taking of tliese goods. Capt. 
French had traced these goods, as he supposed, into my pos- 
session, with the exception of the waist, which has never been 
so traced. This for a wary man like himself was sufficent ; 
but unfortunately for him, they are traced out of my posses- 
sion, and all the circumstances connected with them fully and 
clearly explained. Now, for instance, let us take the article 
of the velvet waist, about which there has bjen so much said. 
Taking with us the rule, which is universally admitted, that 
if there is any other theory ujjon which the facts can be ex- 
platined other than the guilt of the party, that theory must be 
adopt d,. 

I am willing to reverse the rule at this pointy and ask you 
how th) testimony in reference to that article can be possibly 
explained upon the theory of my guilt. I know it is not ne- 
cessary for me tr> present my case to you upon any such 
ground or to assume any such duty, but my wish is to test 
the evidence upon this question of unlawful taking. No wit- 
ness ever traced that article into my possession, not even into 
my drawer — but I have traced it, and we have the combined 
testimony of those present, Lieuts. Stirling, Morris and VV al- 
ker, and private Dunning, as to what was done with the waist. 
They all tell you, there was a discussion upon the point whe- 
ther it had been worn or not, for it was upon that point 
hinged its destination. That discussion terminated in the 
conclusion that the article liad been worn, and it was ac- 
cordingly placed in the small trunk where the made up arti- 
cles were put. After the goods had been sorted, and the 
goods to be returned to the parties determined on, and a box 
sent for, I left for dinner; when I returned the work was com- 
pleted, and the trunk containing the velvet waist had been 
locked and removed, taken charge of by Lt. Sterling and by 
him delivered to the ladies on their carriage, in the same con- 
dition as when he received it when I left for dinner. How, 
where or when, then did it come into my possession? How, 



18 

when or where could it have come into my possession ? Have 
I not reversed the rule and shown that not only is the evidence 
consistent with the theory of my innocence, but that it is 
totally and clearly inconsistent with the theory of my guilt, 
Th6 same remarks are also applicable to the other goods 
placed in the drawer. You have the evidence of the reason 
why they were placed there, and the evidence of their re- 
moval, packed in a valise, marked with a card Otey and Seldon, 
by the very man who did it, and sent to the contraband room, 
and this valise as the Court will remember did not contain the 
black velvet waist. Now from this testimony which constitu- 
tes the whole upon this point, where can you devise the evi- 
dence connecting me with the illegal taking of these goods, 
which it is admitted, is necessary to make the evidence of their 
seizure in Ohio and Connecticut admissable against me, and 
admitting the goods seized there, one and the same with those 
in the office, and I do not admit that the goods seized in Ohio 
and Connecticut are the same as those now shown here. I 
know not what intrigue may have done in this respect. There- 
fore I say, and I say it without fear of successful contradiction, 
that you may admit if you please that the goods taken one 
year afterwards were the identical goods seen in the office, 
still I am not brought within the admitted rule, and the 
prosecution has not done what it proposed to do, in following 
up that testimony to remove my objection to its admissibility. 
But however conclusive this would be of a final result on this 
specification, I do not desire to place myself before this Court 
upon any one portion of the case. It has not been my desire 
by objections, to exclude anything that could be brought 
against me; it is not now my purpose to avoid the just and 
proper effect of all the evidence. Let us then for a moment 
consider the evidence of identity. Independent of the hand- 
kerchief which is explained, and the waist which is proved to 
have been given up, we have the testimony of Mr. McCoy 
and Dunning. 

The testimony of Mr. Dunning as offered by the prosecu- 
tion, and found on page 35, &c., is important in many 
respects. He says, the trunks were opened, goods examined 
and an invoice taken, (precisely what Capt. Morris says I was 
engaged in doing,) after they were examined and repacked, 
the trunks were locked. He further states as follows on page 
44 of the record, " I recollect shortly after the goods had 
** been examined, and Col. Fish had given orders to re-pack 



1%. 

''them, he left for his dinner; and from the time the goods 
" were opened to be examined, till Col. Fish left for his diu- 
" ner, I saw no goods abstracted, and the goods were finished 
*' re-packing and placed in charge of Lieut. Sterling." 

This evidence the Court will perceive, agrees in its main 
particulars with the exception of that of Capt. French, l^pon 
the question of identity, standing by itself, his testimony is 
unimportant. He does not undertake to identify. Speaking 
of the shawl, he says, "There was a shawl something like 
that, but whether the same pattern I don't know." Again, 
*' I recollect seeing a piece of silk, whether made up or not I 
can't recollect, something of that description, &c." " I mean 
to say that those goods are similar to some of those which 
were in the trunks." '• Those I mention particularly I re- 
cognise as similar," "There are thousands of goods like 
patterns, and I could npt swear positively, and I wish to be 
understood that those goods I have mentioned are similar in 
appearance to those I saw in the trunks, and that is the ex- 
tent to which I would go on the question of identity." But 
whilst the testimony of this witness, standing by itself, is of 
no consequence as establishing identity, it is of great import- 
ance when taken m connection with the witness McCoy's tes- 
timon)'', and it will serve as an apt illustration of a general 
remark I desire to make upon the subject of identity. 

We are to recollect that the same goods are exhibited to the 
two witnesses, they are the same subject matter of identity. 
Their examination proceeds upon the theory that they both 
saw them at the same time in i863, in the same trunks, and 
in the same condition. Bear this in mind carefully. McCoy 
saw them at the house in the trunks ; Dunning saw them in 
the same trunks in the same condition, therefore they may be 
said to have seen them at the same time. No cliange what- 
ever had taken place in the articles — the subjects of identity 
is the same. These two parties are now shown certain goods 
upon the theory that they are the same goods as seen by them 
at the same time in 1863, and now comes the examination. 
First, Mr. McCoy: — " The granadine dress I have seen ; it is 
made up now, it was not then ; they were in the original 
pieces." Mr. Dunning speaking of the rep silk. "Was it 
in its original piece?" Answer: "I thinR not." "Does 
your answer to the last question apply to this that you call 
the grenadine?" Answer : "Yes, sir ; the granadine, among 
other goods, was either made up in fuller cut and basted, &c." 



20 

Mr. McCoy question. "In what condition was the black 
rep silk when yon saw it packed?" Answer: "It was a 
whole piece." Mr. Dunning: "I think the black silk rep 
was cut and basted ; I am not certain whether it was made 
up or whether cut and basted ; it was not I think in its orig- 
inal piece." "Mr. McCoy, state which of the articles now 
shown you were made up at the time they were packed in the 
trunk." Answer: " The velvet waist." Question: "Was 
anything else made up?" Answer: " No, sir " Mr. Dun- 
ning : " There were three or four patterns that were cut and 
basted, but whether this (the black srlk one) was finished or 
not I am not able to say." Let us now suppose a boot was 
produced before this Court for identity ; Mr. McCoy is asked, 
" Did you see that in February, 1863?" " I think so; the 
material is similar." " Mr. Dunning, did you see this in 
February, 18fi3 ?" " I did." "Mr. McCoy, in what condi- 
tion was it when you saw it?" "It was a side of upper lea- 
ther." " Mr. Dunning, in what condition was this article 
when you saw it ?" "It was a boot." What would you 
think of the identity ? And yet they stand upon the same 
footing in relation to the present question of identity. They 
are both speaking of what they suppose they saw at the same 
time, and one puts it in the original piece and the other in 
dresses either cut and basted or fully made up, but not in the 
original piece. So much for a comparison of this testimony. 
Now examine for a moment the testimony of Mr. McCoy, 
standing by itself, and when you come to examine it carefully 
and reduce it down to its true meaning, it amounts to noth- 
ing more than Mr. Dunning's. He would have you believe 
he was an expert. And why ? Because he is a wholesale 
dealer in woolen goods by the case. He seems to have been 
the especial favorite of these ladies, and attended to tlieir mat- 
ters with extraordinary minuteness. He could tell you the 
value of the missing articles without being able to say what 
was missing, what was returned, or even the number of jjack- 
ages returned. 

He and Mrs. Miller had talked the matter over. His ground 
of identity, in reference to the goods, was something new and 
rather interesting to any one except himself, and tlie palor of 
his face, when endeavoring to extricate himself from his diffi- 
cult position on that subject, was, to my mind, sufficient evi- 
dence that he was endeavoring to give a reason about some- 
thing of which he knew nothings like every other person who 



21 

undertakes to give a reason for an absurdity for which no 
reason can be given. 

Mr. Miller, the relative of one of these ladies, and at whose 
house they were stopping, and whom it is to be presumed 
would take as much interest as Mr. McCoy, and who saw the 
goods both before their seizure and after their return, when 
asked the question he frankly states, " The only thing that I 
recognise is a handkerchief. ' ' He was living in the same house 
where the ladies were and the goods both were. He had vastly 
greater opportunities of knowing all the facts connected with 
the goods than Mr. McCoy. He examined them and noticed 
there were some missing ; but testifying, as he knew every 
man of judgment would testify, he says, " The only thing I 
identify is the handkerchief, and that only from the initials 
marked on it." How these ladies came to Mr. Miller's does 
not appear. Mr. Miller himself was surprised to find them 
there, and the first question he asked them was if they were 
there by any authority. Mrs. Otey was a stranger to the 
family, and from this testimony of Mr. Miller, and from the 
fact that Mrs. Otey has since been arrested and is now in 
charge of the Provost Marshal of Baltimore, as the papers in- 
form you, with her goods again seized, I leave you to infer 
their character and their business. How M-r. McCoy came to 
be at the house, and so attentive to these ladies, does not ap- 
pear. That is one of the unexplained facts with which this 
case abounds, and the secret of which we may never know. 
Whether he was there as an expert in packing, to enable tliem 
to get the largest quantity of goods in the smallest space, does 
not appear ; but he certainly must have been a professional 
packer, as the entire force of the Provost Marshal's ofiice 
were unable to repack them in the same space But from his 
own statement he was constant, both in season and out of 
season, in his attentions upon them. If the prosecution them- 
selves had any reaZ confidence in the identity of these goods, 
why have they not furnished you with the testimony of re- 
spectablC;, high-standing merchants in Baltimore, from whom 
they were purchased. If there were any means to identify 
these goods, those who sold them would have it more clearly 
within their power to settle this question of identity than any 
other parties, and strange to say not one of them has been 
called, but the whole matter made to rest upon the testimony 
Of Mr. McCoy, who, from first to last, has appeared as the 
factotum of these ladies. The witness McCoy also talks about 



22 

tlie letter '' F," as the private mark of Hamilton Easter. 
Why not produce Hamilton Easter? Simply because if the 
Court will look at the gloves they will see that the letter "F" 
is the manufacturer's mark, and put there by him as a part of 
the entire mark on the glove. He first says it is the private 
mark of Hamilton Easter and then says it was a mark desig- 
nating size, and that he took notice of it because it was ex- 
actly his size. You will recollect the size of this witness' 
hand, and no one would accuse him of having a lady's size, 
and how the letter "F" on a lady's glove could be exactly 
his size, I am unable to say. He says he looked and saw the 
letter '' F " on the gloves at that time, and *' that was his 
size exactly. " He then immediately following says " he 
looked at the number to get his size," and when asked by the 
Court what the figure " 3 " means on the gloves, he answers, 
'* I do not know, I never noticed it before," although he had 
stated before that he had examined them very carefully^ as 
they were the first he had ever seen. His appearance, when 
examined in reference to these gloves, was that of a man who 
undertakes to give a reason for a thing that will admit of 
none, and the more he endeavored to explain, the more em- 
barrassed he became. Why not have produced the best tes- 
timony the case admitted of, and why exclude that, and re- 
ly upon the special champion of the ladies, whose profes- 
sional knowledge of silks and gloves is derived from dealing 
at wholesale in heavy woolen goods. 

The handkerchief I did mention to Capt French ; be tells 
you so ; and I did tell him I feared that on account of that, 
my enemies would say that I had taken goods home. The 
liistory of that handkerchief is brief. Gen. Schenck tells you 
it was in his room ; that as I was about retiring for the night, 
he handed it to me to take away. Adjutant Walker saw it 
on my bureau ; from there it was placed with my articles by 
the servant in the drawer, and in putting ray wearing apparel 
into my trunk, when I was taken sick and relieved by fur- 
lough, that went with the other apparel into my trunk, and 
I never thought of the article from the time I put it on my 
bureau, till, in looking for a handkerchief at my home, to 
my surprise found this among the number. I then gave its 
history, and yet the prosecution would have you believe that 
a man, who has earned an enviable reputation for honesty 
and integrity, through whose hands thousands upon thous- 
ands of dollars have passed without a farthing missing, 



would wilfully aud corruptly pilfer a pocket handkerchief, 
carrying with it the very earmarks by which it could at any 
time and place be identified. It was in reference to this that 
I said I was afraid my enemies would make a handle, and had 
it been in reference to anything else, why did I not relieve all 
danger by removing the goods from my wife's possession 
when she came to Baltimore, and when I knew this charge 
had been brought against me. 

There remains but one other matter to consider in reference 
to the question of identity. Unexpectedly to anyone, after 
the Court adjourned to await the testimony of Lt. Sterling, 
who was sick, and Capt. French, who was absent, a new 
witness was introduced, which seems to have been the re- 
sult of the diligence of Lt. Parker, as that is the first time 
Lt. Parker made himself visible in this case in any other 
capacity than as a witness. The name of no such witness had 
ever been given to me — none such was upon the list. She 
appears for the first time after the adjournment. I do not 
wish to dwell at length upon her testimony. If she had said 
she could identify it from its peculiar style, being one of her 
own cut and fashion, or given any peculiar reason why she 
could identify it, there might have been some plausibility 
about it, but she says no such thing. At first when ques- 
tioned, she said she generally sewed on the trimmings to any 
thing particularly nice, but when pressed for her reason of 
identifying this, she for the first time recollects that in point 
of fact she sewed on the these trimmings, nothing unusual in 
the sewing, and not even recollected by her till pressed for a 
reason, and when finding it necessary, like Mr. McCoy, to 
give some reason, lights upon one the least calculated of all 
others to furnish a reliable ground for identity. 

I might detain you by some general remarks upon the 
question of identity, its unreliability and insecurity, and cite 
from the various articles that have been written upon this 
subject from time to time, and from the various cases in which 
the greatest injustice has been committed growing out of mis- 
taken identity. I will only say that I am sustained by all 
the writers upon the subject in asserting, that from no one 
cause alone have so matiy people been wrongfully deprived 
of their life and liberty, or so great public wrongs commit- 
ted, as that from mistaken identity. And if Miss Ressler is 
right in thinking she made this for these ladies, it is proved 
by four witnesses, that the one seized was returned or placed 



in the trunk and put in charge of Lt. Sterling, who says he 
delivered it, and not a yard of velvet is mentioned in any in- 
ventory produced here of these goods. 

Capt. French is asked to state, " Did you see Col. Fish 
do anything with any silks?" He answers, " He laid them 
down at one end of the trunks, as though there was some- 
thing unusual done in reference to those particular silks." 
And yet when cross examined, the silks were shown to have 
been treated precisely as all the balance of the goods, and 
the only way in which they could be disposed of, as he was 
compelled to state When questioned again, he states that 
*' he (Col. Fish) afterwards put them in a drawer of his 
desk," as though I had a sinister motive in so doing, and 
evidently desiring to convey the impression that I was then 
in the presence of all these witnesses, committing the crime of 
larceny of these articles. He is then asked in reference to a 
pretended conversation he had with me in relation to those 
goods. I ask you to note his evidence upon this point and 
say, whether it is legal or competent evidence to affect the 
rights of any man. He ''has an impression that the sub- 
stance of the conversation was that 1 admitted that certain 
goods belonged to this lot." Are any man's rights to be af- 
fected by such evidence? Who is to be the judge of what 
constitutes an admission, the witness or the Court? Who is 
to pass upon the conversation, and what is meant by it, what 
bearing it ought to have, and what should be its proper con- 
struction and interpretation ? He is not here to pass his 
judgment. He is here to state facts upon which you are to 
pass your judgment. He is not here to play the part both of 
a witness and a judge, and he has no right to usurp the 
functions of a judge, and to put his interpretation upon what 
he understood was said at the time, and his interpretation of 
what that meant. Suppose a man to be upon trial for ob- 
taining money under false pretences, and a witness should 
come upon the stand and say the prisoner admitted his guilt 
and stop there, could there be found a judge or jury who would 
act upon said evidence? Would they not say, " state what 
he said to you, it is for us to determine whether it was an ad- 
mission or denial. Guilty men are not apt to admit their 
guilt — let us know what he said^ and we may put an entirely 
differant construction on it from yourself. We are made the 
judges, not you." Let me ask you to pause and consider for 
one moment what you are asked to do. You are asked to 



. 23 

condemn me upon what I told Capt. French, without having 
before you one word I did fell him. Whose life could not be 
sworn away if such testimony as this was to be acted upon ? 
I care not who may be the witness, however pure, honest, in- 
telligent and unprejudiced he may be, it is not legal or com- 
petent testimony, and to act upon it would be to overturn the 
principles of law, violate every principle of human action and 
place the life, liberty and property of man at the mercy of his 
neighbor ! Singular to say, he is unable to fix the time or to 
remember one single ivord I said. All he can say is this : 
'* That the impression on his mind is that the substance of 
the conversation amounted to an admission." I envy no man 
his position who volunteers to blast his neighbor's reputation 
in such a manner; eager indeed nmst he be, who would resort 
to such a method to carry his point. 

I used the word volunteer, because he must have done it, as 
he says no one was present, and he must have volunteered the 
communication to some one. After being asked as to what 
expressions I used, I put to him the question, *' Do you re- 
collect the word handkerchief was used in that conversation ?" 
and for the first time his slumbering memory seems to have 
been arrested and he answers^, * ' I think the word handker- 
chief was used." How used — in what connection — what 
bearing had it upon the subject ? But he is unable to tell 
you. " Did I not state that I was fearful that in consequence 
of the handkerchief with the initials upon it, my enemies 
would construe it that the goods were the same as belonged 
to that lot ?" He has no recollection, but yet I did use that 
word. He says, " Yes I did use it and explained to him how 
it came there." This is I presume what he calls an admis- 
sion. In this connection let me call your attention to a re- 
mark or two in reference to human testimony. You may 
havH" more confidence in it than I have, but I am speaking to 
men of experience and observation, and to that I appeal. If 
you were asked to construe a conversation that you never 
heard, or a statement made out of your presence or hearing, 
would you not want to know the manner of speaking and all 
the circumstances surrounding and connected with it? Are 
not those circumstances oftentimes more important in giving 
construction to the language and meaning thereto, than the 
language itself? Turn a joking or playful remark into a 
matter of earnest and you could hang eight-tenths of the com- 
munity . Put a question in the form of an assertion, though using 



26 

the same language, and you will entirely change the mean- 
ing. Change even the emphasis or remove the proper punc- 
tuation and what was intended to be one thing will be found 
to be another. If when you are called upon to construe and 
give effect to a conversation you could have the exact words 
used, the manner and tone in which they are said, how they 
came to be said, in what connection, and all and each of the 
circumstances attending it, and go to make up a part of it as 
much as the language itself that is used, then you might feel 
a degree of safety in acting upon your construction of it and 
affecting the right of others by it ; but without this it is dan- 
gerous and unreliable. You have a practical illustration of 
this in the very testimony before you of Capt. Parker. When 
examined here he is asked the question, " Did Col. Fish ever 
make any remark to you about making any money ?" "Col. 
Fish," he said, "asked me at Genl. Schenck's Headquarters, 
before he assumed the position, what the position was worth. 
I answered him I did not know what he m.ant. He asked me 
how much I could make out of it. I told him I could make 
my pay as an officer, nothing more." Tliis witness has been 
examined before, and in his affidavit he speaks about this con- 
versation at Headquarters and that I laughed and Avent away. 
He forgets to tell you that now, about the laugh, or to call 
your attention or ask you to consider the probability of my 
having made any such remark to an entire stranger, as he 
was to me at that time. 

If the prosecution offer the testimony of Capt. French as a 
confession, they have entirely failed as I have already shown. 
The principles of law and common sense upon this subject, I 
have already commented on. Let me refer you to a few words 
upon this subject, found in the 214th section of 1st Greenleaf 
on Evidence. They are as follows : " The evidence of verbal 
confessions of guilt is to be received with great caution." For 
besides the danger of mistake from the misappreiiension of 
witnesses ^ ^ the misuse of ivords," the failure of the i)arty .to 
express his own meaning and the infirmity of memory, &c.. 
the zeal, too, which so generally prevails to detect offendeis, 
especi.illy in cases of aggi-avated guilt, and the strong dispo- 
sition in the persons engaged in pursuit of evidence to rely on 
slight grounds of suspicion' whicli are exaggerated into suffi- 
cient proof, t()<':ether with tlie character of witnos.'^es, &c. , 
tend tj im[)air the value of this kind of evidence and some- 
times lead to its rejection. And as Justice Foster says, wo 



n 

are to keep in mind that " this evidence is not in the ordinary 
course of things, to be disproved by that sort of negative evi- 
dence, by which the proof of plain facts may be and often is 
confuted." 

But in reference to the question of human testimony. It is 
a common error to suppose that from the lips of a witness, you 
desire the/act to which he testifies. You only desire the im- 
pression which that fact has made upon the witness' mind. 
This I submit is a most important consideration in the weigh- 
ing of human testimony. If there is a defect in the mind upon 
which the impression is to be made, there will be a corres- 
ponding defect in the impression itself. The human mind is 
like the plate of the daguerreotypist — if there is a defect in 
the plate, there will be a like defect in the picture, and it is 
before you with all its imperfections ; and if from any cause 
there is a defect in the mind, there will be a like defect in the 
impression made, and that impression with all its defects is 
conveyed to you by the lips of the witness. And this is hu- 
man testimony. Let two witnesses testify to the same occur- 
rence, a blow for instance in the street. One will speak of it 
as of the most trifling character, not worthy of notice ; the 
other as a most severe blow, one calculated to do the utmost 
mischief. And yet the blow is the same. You only get the 
impression made upon the minds of the two witnesses, and 
upon that ground you can alone account for the discrepancy.' 
In the one case, the party has been inured to such scenes, and 
looks upon it as a trifling matter ; in the case of the other, he 
has been unaccustomed to such scenes, and to him it is a mat- 
ter of the most serious character Theii- minds are different 
and the impressions made are diff'erent, and consequently their 
testimony is different ; and hence no testimony can be accu- 
rately weighed without first discovering the condition of the 
mind upon which the impression is made, and the power of 
that mind to retain it and communicate it to others. If the 
mind is improperly affected by prejudice, ignorance, weak- 
ness, jealousy, envy, or from any other cause, that is to be as 
much considered as the words spoken, which are but the mere 
instruments or vehicles, through which an impression is sought 
to be conveyed from one mind to that of another, and I trust 
you will keep these considerations in mind as you examine 
the evidence in this case. 

5fh Specification. — The next specification is the 5th, con- 
taining the charges in reference to the Confederate or so-called 
cotton bonds. The evidence is before you in relation to those 



28 

bonds, and I leave it for you to determine whether I deserve to 
be court-martialed upon that subject, or whether my conduct 
does not meet the sanction and approval of everyone, who earn- 
estly and honestly desires to su])press the present rebellion, by 
the most effective means. I wished to bring some twenty 
thousand dollars into the service of our government, and at 
the same time, take it from the pockets of our enemies, or 
what was tantamount, from their sympathising friends abroad. 
I put it in the light of commissary stores or any other prop- 
erty captured from the enemy, and thought then and think 
now, if we could sustain ourselves upon the enemy, the burden 
would be much lighter upon our own people, and the taxing 
of the rebels would be one means at least, of hastening the day 
of their exhaustion, which would seem to be the point to 
which the present war is lesolving itself. When the bonds 
were seized I made my report and recommended this course. 
I stated all the facts and fully gave my reasons. Had how- 
ever the General Commanding communicated to me the result 
of his interview with the Secretajy of War, the bonds never 
would have been sent forward ; but the General, amidst the 
multiplicity of his affairs, failing to communicate further with 
me, and supposing it to be a plan by which they would gladly 
have the secret service fund provided for, and at the same 
time, not wishing to be considered as a government formally 
endorsing and ratifying the arrangement, I proceeded in the 
absence of orders to the contrary, to put in execution the plan 
I had matured, by which to realize from the enemy, or its 
friend abroad, the amount for which these bonds would have 
sold at that time in a foreign market. The General Com- 
manding tells you that he neglected to communicate to me 
the views of the Secretary of War upon this subject, and he 
gives you the reason, and that it was through that neglect 
and through a misunderstanding by me of his instructions, 
that the bonds have been forwarded. I refer you, in addition 
to his testimony upon this subject, to my official reports made 
to the Commanding General, and to the testimony showing 
the efforts made by myself to reclaim them, when I found I 
had acted under a misapprehension. I am willing to leave 
this before you without further comment ; I am willing to 
leave it as a part of the record of my military life, and I feel 
to-day, that if every one in his official conduct would be ac- 
tuated by the same motives by which I was induced to take 



29 

this course, the present rebellion would be nearer its termi- 
nation. 

^th Specification. — The 6th specification charges, that having 
in my possession, Southern bank notes of the nominal value of 
($998) nine hundred and ninety-eight dollars, I did embezzle 
and wrongfully misapply the same, and that I never delivered 
ovei , or made any true account of said notes, or their proceeds 
or any part thereof, to the proper authority. 

Fortunately in this, as in every other case; when the testi- 
mony is of such a character as to come within the ordinary 
scope of explanation, I am not only able to entirely prostrate 
the charge, but to exhibit the grave mistakes and misappre- 
hensions under which the prosecution has been inaugurated. 
If I am not able to contradict certain alleged private conver- 
sations, with which this case seems to abound, and which 
from their very nature are not susceptible of contradiction, I 
am able when it comes to matters of open fact and of record, 
to dissipate the mysteries that have been gathered together, 
and to sweep away the illusion that has led perhaps the hon- 
est mind astray. It was no doubt, the theory of the prosecu- 
tion, that this was a private speculation into which I had en- 
tered with the witness Mr. Wilson, and this serves to illus- 
trate, how people who neglecting their own business and de- 
voting their time to other people's, are led into error, by attri- 
buting a false or base motive to every action of their neighbor, 
about the circumstances of which they are profoundly igno- 
rant — and this one transaction, as it would seem from the tes- 
'timony of the witness, gave rise to the wildest imaginings, 
and his name was connected with mine, as he tells you, with 
untold operations, and this was the only transaction, as he 
says, that he at any time had with me — but it was sufficient 
in the eyes of those who were about me, and who, in the lan- 
guage of the law already cited, were eager from their zeal to 
detect, and ready to rely on slight suspicions exaggerated into 
sufficient pi oof, and what is the result? For an act, in the 
performance of which I acted with an eye single to the best 
interests of the government, and in the doing of which, ac- 
cording to their own testimony, the interest of the govern- 
ment would be the best subserved, I am placed upon trial for 
embezzlement. Let us look at the evidence in reference to this 
charge. Mr. Wilson is called, his testimony is found com- 
mencing on page 101 of the record — he testifies to my hand- 
ing him the money in the office, for which I took his receipt — 



30 

he sold the money and gave me a check for the amount due. 
Every effort was made by the prosecution to make it appear 
that this was a private transaction between the witness and 
myself — he is asked several questions to show this fact, but to 
all, he answers it was considered a transaction for me in my of- 
ficial capacity, in which the government was to be benefitted, 
and by which in point of fact, it was benefitted. At the time 
he sa} s, in answer to the question by the prosecution, he pre- 
sumed he was acting for me in my oflicial capacity as an of- 
ficer of the government, it was with that understanding he 
gave me a receipt for the money. And the check offered in 
evidence by the prosecution to show the receipt of the money 
by me, shows my official endorsement thereon. 

It is hardly necessary that I should make any comment 
upon the remaining part of this specification, which charges 
that I never accounted for the amount received. Mr. Wilson 
testifies that the amoimt received by him was $426.00 — that 
exact amount you will find in my account; and he also states 
that the amount received by him from me to sell, at the first 
instance was about $1,000, and on cross-examination, he states 
that I afterwards gave him some more bills, which he 
added to the amount in the package. These two amounts 
made up the sum of $1,065, on which the actual 
amount received was the sum of $426, which is the exact 
amount found in my account; and instead of having embez- 
zled the government funds in this operation, when you come 
to get at the exact truth of the matter, there is an error 
against me upon this one operation, as the account now 
stands, of $4:6, and yet I am gravely charged with having 
embezzled two hundred and thirteen dollars and five cents. 
If I liad had the opi)ortunity of examining these accounts 
that ray prosecutors have had, I never should have signed my 
name to that, although it was reported to me as correct, by the 
clerk of the officer who was appointed to audit it. Three 
several efforts had been made in vain to have these accounts 
properly made up, when I applied to the Commanding 
General to have an auditor appointed. The officer detail- 
ed to my office for that purpose, having proved incompetent. 
That account coming from the hands of the auditor and re- 
ported correct, I signed If I am chargeable with stupidity in 
signing such an account, my apology is that I never had the 
time or opportunity to examine it. But what can ray prose- 
cutors say, when they have the entire account before them, and 



31 

charged me with having embezzled $213.05 in a certain trans- 
action, in which the account itself, without other testimony, 
upon a proper examination of it, shows an error against my- 
self, and in favor of the government for the sum of $426, and 
yet such is the fact and such are the figures. I have been 
charged with the whole amount I had received, and when sold, 
should have been credited the difference between that and the 
amount I actually received for the money sold, instead of that, 
the account and evidence shows you how it was done, and in- 
stead of embezzling as charged, there is a balance now re- 
maining my due upon the transaction, of $426. 

The witness, Mr. Wilson, states to you it was the best possi- 
ble arrangement that could have been made for the govern- 
ment — tliat the money was so far south and of sucli a charac- 
ter, that it would not sell in this market, and gave the reason 
why he could dispose of it in New Orleans. 

In this connection, 1 refer you to the testimony of Mr. .Mil- 
ler, and the corrected account made by him, which I offer as a 
part of this, my written defence. 

7f/i, ^th and 9th Specifications. — The 7th. 8th and 9th speci- 
fications, I propose to discuss together, as the same evidence 
bears to a great extent upon each, and the comments upon 
that portion of the testimony applicable to the one, will nlike 
be applicable to the others. The 7th charges, that having re- 
ceived into my custody, two prisoners named Gogensheimer and 
Hertsler, charged with attempting to pass the military lines 
without authority, and having in my possession their money, 
I did release said prisoners and restore them their money upon 
the solicitation of one B. F. Ullman, and did corruptly receive 
from said Ullman as a consideration for so doing a diamond 
breastpin — this about the 25th February, 186H. The 8th spe- 
cification charges, that having in my possession a large amount 
of money, including about $3,700 in gold, belonging to or 
claimed by one L. Marr, I did deliver up said money to Marr up- 
on the solicitation of said Ullman, and did corruptly receive from 
said Ullman, as a consiberation for so doing, the sum of two 
hundred dollars. The 9th specification charges, that hav- 
ing in my possession a large sum of money, (amount 
not stated) which had been taken from two men named Irene 
and Lipzen, who had been arrested under charge of attempt- 
ing to pass the military lines without authority, did deliver 
up said money to said parties upon the solicitation of said 
Ullman, and did corruptly receive as a consideration therefor, 



32 

the sum of two hundred dollars. The specific charges made 
in these specifications, and upon which you are to decide are, 
that my official conduct was influenced and based upon the 
corrupt receiving from the witness, Ullman, compensation for 
my action, but I did what I would not otherwise have done, 
had it not been for such considerations — that I released these 
parties and delivered them up their money, not because there 
was no case made out against them upon which I could hold 
them — but that I corrujjtly received as a compensafion therefor 
a diamond pin and the money mentioned, that this was the 
motive upon which my action was based, and the considera- 
tion which induced me so to do. This the Court will bear in 
mind is the only charge upon which they are to pass, and 
which must be clearly established by the evidence in the cause. 
The first witness whose testimony I propose to examine in this 
connection is B. F. Ullman. He comes before you to 
testify, under the circumstances narrated by himself, with an 
affidavit before him, extorted under circumstances which he 
says, to use his own language, would have caused him to sigA 
anything, no matter what it might have been, to obtain his 
release at the time. Understanding, as he says, it was neces- 
sary to testify to something against me, in order to obtain 'hat 
release, you may take the entire testimony of this witness as 
it stands and connect with it the testimony of the Jews who 
have been examined, and admit it all to be true, and it fails 
entirely to support these charges. 1 am charged with cor- 
ruptly selling my official action, and for a consideration re- 
ceived, performing certain official acts — this is the charge 
which the prosecution is bound to support by the evidence in 
the cause. This evidence not only fails to establish any such 
charge, but from the lips of their own witness, negatives any 
such fact. And it is not for the prosecution to ask, not only 
in the absence of evidence, but in direct opposition to the tes- 
timony off'ered by them, that you should arrive at any such 
conclusion. Mr. Ullman says, on page 421 of the record, 
''that I have no knowledge that he ever received any compen- 
sation or was paid any money by any parties for his services." 
On page 426 of the record, he says, "I never at any time 
paid Ool. Fish any money, or made him any presents for the 
purpose of influencing his official conduct." 

"There never was any such understanding between him and 
myself, and his official conduct was never influenced by any 
thing that ever passed between us." And yet you are asked 



33 

to find exactly the reverse from what their own testimony 
proves. I ask you carefully to read over his testimony and 
examine it in reference to this point — note the replies I made 
when applied to by him in behalf of parties. In all cases as 
testified to by him, saying, "If nothing was found against 
them they would be released and their money restored, but 
if there was, their money would be confiscated and the parties 
held." Look at the various schemes he laid and efforts he 
made to ingratiate himself into my favor, and if you wish, 
look at the testimony of Lieut. Parker, although I have no 
desire to resort to such a source to substantiate any thing, but 
as he is their own witness, offered and vouched for by them, 
in offering him as a witness, and see how entirely inconsis- 
tent is his testimony, with the tlieory that UUman had any 
understanding with me or any influence over me. Within a 
week or two of Lieut. Parker's leaving the office, and after, 
as is alleged, I had sold my services to Ullman, Lieut. Parker 
states, on page 495 of tiie record, as follows, " Mr. Ullman 
came to me in the morning to the office and asked me to go 
down and see Col. Fish and use my infiuence with him to have 
these Jews released, saying we can make something nice out 
of it." '-He then asked me (the witness) if I could not go 
down and see Col. Fish myself and ask Col. Fish to allow 
him (Ullman) to speak to him." Now who on earth can re- 
concile such conduct as this on the part of Ullman with the 
theory sought to be established, that I had sold him my ser- 
vices — that there was an understanding between us, and that 
my official conduct was influenced by him — if so, what need 
of this action on his part. But this is not all to be found in the 
testimony of this witness, Lieut. Parker. He is asked by the 
Judge Advocate, on page 499 of the record. "What was his 
(UUman s) business with you and Capt. French ?" He an- 
swers : "He came first as a friend, afterwards made me several 
offers to enter into a plan with him after Col. Fish had re- 
leased prisoners, for me to hold them over for about twenty- 
four hours^ till he could see thein and tell them they were to 
be sent JSouth or to prison, and he would scare them, and they 
would give him money to get released, and after that I was 
to give the order and have them released, and he would share 
the money with me." How well Ullman must have known 
his man, and the correctness of his judgment is verified by the 
fact that no report was ever made by the witness, Lieut. Par- 
kei', of any such conduct on the part of Ullman. No ; he 



34 

was perfectly safe in the hands of Lieut. Parker, and he knew 
well that fact. He made much the same offer to Capt French, 
and on the same page, he says he made application to Capt. 
French to have prisoners released, and was generally success- 
ful; they generally got away — they were released. Again we 
have Ullman's efforts to reach me, his going to the officers to 
get them to invite me to his dinner, which was afterwards, as 
ne stated, turned into a supper, at which Capt. French pre- 
sided. Although I am not amenable to these specifications 
upon the evidence, as nothing was given to influence my offi- 
cial conduct, still the theory of the prosecution is that I did 
in fact receive the things from Ullman. Upon this point 1 
am willing to leave it to the statements made by Ullman, 
when he was not under fear, to Mr. Smith, to Mr. Whitney, 
to Lieut. Parker, when he asked him if he had seen the pin, he 
(Ullman) had sent it as a present to Col. Fisli — to his putting 
my name on it — when lie told Lieut. Parker Col. Fish was a 
damned fool, for if he would work in with him he could make 
an independent fortune. The testimony of Capt. Morris and 
Adjutant Walker, who saw me when I opened the box — my 
official report to Genl. Schenck which refers to other things 
having been left — my declaration to White that I had received 
them but never knew where they came from, which the pros- 
ecution has put in evidence and made testimony, and all the 
otlier evidence which shows how 1 treated Ullman and the ef- 
forts he made to get other parties in the office to influence me, 
because he himself could not do it. 

That testimony cannot be explained upon any other theory 
than the one always claimed by me. The more closely you 
examine all of the testimony showing the connection of Ull- 
man with the office, the more thoroughly will it appear as 
totally inconsistent with the theory of his having any influ- 
ence with me. But independent of all these considerations, if 
you take the testimony as true, and place reliance upon it, 
then the charges contained in the 7tli, 8th and 9th specifica- 
tions must fail, lor his evidence fully and clearly negatives 
them. If, on the other hand, you place no reliance upon his 
testimony then they must equally fail, for without him there 
is no testimony on the subject. The prosecution may select 
either horn of the dilemma they please. If you believe him, it 
is fatal ; if you disbelieve him, it is alike fatal, and I now ask 
you, as men upon your oaths, sworn to try this case upon the 
evidence that is offered end upon which you can rely, is there 



35 

from the beginning to the end of this record one tittle of evi- 
dence to sustain them and nothing else. Now, luhere is such 
evidence to be found ? You are not to act in the absence of 
evidence, and I ask the Judge Advocate to point me out the 
witness or witnesses, or the fact or facts that go to establish 
any such charges. If it is claimed that UUman gave into my 
hands the presents of which he speaks, and I had been placed 
upon trial for improperly receiving them, it would be then 
another question, and reduce itself down to a matter of verac- 
ity as between Ullman and all the other evidence in the cause, 
including his own former statements on the subject, and still 
it does not in the least degree affect these specifications. The 
acts and transactions themselves charged fail entirely in carry- 
ing with them any intrinsic evidence of fraudulent conduct on 
my part. Strange that in no one instance have I acted in 
any other way than 1 should have done, or that any member 
of the Court would have done under like circumstances. I 
refer to the releasing of the parties and giving up their money. 
The parties were not arrested by me ; they were sent to me 
on parole, sometimes a week, sometimes more and sometimes 
less, after their arrest. No witnesses sent against them — ar- 
rested merely on suspicion, and from the time of their arrest 
up to the time of the present trial the prosecution has been 
unable to find a single particle of evidence upon which they 
could have been held, or upon which I would have been justi- 
fied in kee|)ing them longer in confinement, or to show that 
in a single case where I released a party or returned him his 
money, there was the least evidence upon which I could have 
longer detained him. And is not this a most remarkable 
fact, after such extraordinary exertions, and charging me 
with this improper action, and ransacking the country asthey 
have done, they have not been able to show by evidence that 
in a single case I released a party or gave him back his money 
when the same sliould not have been done. After a year has 
elapsed, and all this effort, not a j^article of evidence has been 
found that would justify detaining a single party I released. 
The parties were arrested on suspicion, and no doubt 'in many 
cases the suspicions were correct, but I must have some facts 
to corroborate suspicion, and without those facts I am bound to 
make such a disposition of the case, as all the circumstances 
surrounding it would justify. Some I released to go North, 
not to come South of a certain line during the rebellion ; some 
sent South, or such disposition made of them as the good of 



36 

the service required. And to show the influence of Ullman 
over the disposition of such cases, I need only to refer to the 
case of Gabriel Mayers, on page 450 of the record, who says 
he wanted to go North to New York. He saw Ullman and 
gave him a check on New York for $100, for which Ullman 
Avas to get him released, saying to him, " If I give him $100 
he gets me out, i gave him the check ; he says then we 
could go off that night." But strange to say, instead of be- 
ing sent North, or allowed to go there, they were sent South, 
their money and property confiscated, and a full report of the 
case made, which is in evidence belbre you. This man is the 
one who assumed the name of Lippman, which he gave at the 
Point of Rocks, and was tlie man who had beibre been arrested, 
and whose money and property was now confiscated and handed 
over to the government. For many reasons I do not think it 
necessary to examine in detail the testimony of the Jews that 
have been offered in refeience to this branch of the case ; the 
most potent reason is, that admitting all they testify to be 
true, it does not in the least affect the issue made u[)on these 
sj^ecifications; they have been offered to prove outside ariange- 
ments they made with one of their own faith, by which they 
were swindled out of their money, and to recover which they 
were willing to come to Washintj:t()n and make affidavits and 
to obtain what the witness called his rights. Now the ar- 
rangements made by these Jews and Ullman, out of my pres- 
ence and hearing, and without my knowledge, could no more 
affect me than any member of the Oourt. There is not a wit- 
ness in the case, from the beginning to the end, who whispers 
the fact that I ever knew of any such arrangement ; but yet 
in violation of every rule of law, not following it up by 
evidence bringing it home to my knowledge, this testimony is 
now found in the record. Who is there holding an official 
position that could not be ruined if such testimony as tliis 
was to be acted upon ? You might as well accuse a judge 
with improper couduct in deciding a case in favor of a party 
who had made a contingent arrangement with his counsel, or 
the head of any department, or accounting officer, who should 
decide in favor of a party representing a claim, if it should at 
any time be discovered that that party had made a heavy con- 
tingent contract with the person whose interests he repre- 
sented — and I stand in precisely this light. Their own wit- 
nesses say I knew nothing of them, and there is none to con- 
tradict. You are to act upon evidence, and upon that alone. 



37 

If the evidence is not fonnd to sustain a theory you cannot 
proceed upon that, though it is not your fault ; you are not 
to supply testimony or to imagine things in opposition to the 
evidence, and when there is no evidence connecting me with 
the arrangements hetween these Jews and Mr. Ullman, then 
to ask you to act upon that theory is to ask you to commit 
perjury as much as though you were asked to go upon the 
stand and testify to a falsehood ; and I ask you where upon 
this record is to he found the connecting link between these 
arrangements and myself. The two Jews called in connection 
with these specifications are Hertzler and Lewis Marr. I do 
not desire to comment in detail upon their testimony. You 
have had them before you, and you will have their testimony 
also befoi'e you. If you will refer to the testimony of Ullman, 
on page 399, I think you will find the true manner in which 
Ullman saw Hertzler when he was in confinement. He is 
asked by the prosecution, "Did you see Mr. Hertzler when he 
was in confinement ?" He says, "I did, sir." "iState how 
you were enabled to see him." Answer, "Lieut. Parker was 
there ; he says, 'Ullman, look in there, there is a lot of Jews 
in there.' He told the guard, 'Let Mr. Ullman go in if he 
Avants to,' and I went in." If in this connection you will 
read the account given by Lieut. Parker in reference to this 
occurrence, commencing on page 495 and ending on page 497, 
I am sure you will be satisfied that UUraans statement in 
that particular is more to be relied upon than that of Lieut. 
Parker. I am at a loss to understand his evidence. He says — 
now mark his language on page 496, "Mr. Ullman came up 
and either told me he was to see the Jews or brought me a slip 
of paper, which I am not sure ; one or the other took place, 
he either told me or brought a slip of ])aper." And yet in 
the same breath he goes on to say, "If Ullman did not bring 
me an order from Col. Fish to see them, Col. Fish told me 
himself," thus ignoring his former statement entirely as to 
what Ullman may have said. Ullman is also asked, "Did 
Col. Fish have any knowledge that j'ou had this interview 
with Mr. Hertzler by permission of Lieut. Parker?" He 
answers, "No, sir, he did not." "Who had charge of the 
prisoners in confinement ?" "Lieut. Parker.' "If you de- 
sired to have an interview with any person, to whom did you 
apply?" "Capt. Parker, Lieut. Parker at that time, gave 
me liberty to go in." But you have this testimony before 
you, which you will examine and weigh for yourselves. It is 



38 

impossible, without trying your patience too much, to point 
out all the discrepancies in their testimony, its inconsistencies 
standing by themselves, and contradictions one with the other. 
The testimony of Lewis Marr commences on page 309. He 
was arrested at Wicomico and kept there about seven days, 
then taken to Genl. Lockwood and detained there several days, 
and then paroled to come to Baltimore, without any specific 
charges — no witnesses — only acting upon suspicion. After 
two weeks from his arrest he is sent to Baltimore, where I de- 
tained him another week, and finding no evidence against 
him, I ordered his release, and what is remarkable, no evidence 
has been found against him to this day to show that I could 
do anything else than release him. 1 did not make the arrest 
and then release him ; he was arrested by others and held by 
tliem as long as they could consistently do it, and then turn- 
ed over to me. I took one week to examine into it ; was that 
too long or too short ? Who can judge ? But his ideas of a 
Provost Marshal are somewhat peculiar. He is asked if he did 
not think the Provost Marshal should have time to investigate 
such a matter. He says, '"iVb." Question, "^'You thought 
he ought to do it at once?" Answer, ''Yes, right off. " 
Question, "You thought when you offered to swear it was 
your money, tlvat was sufficient." Answer, "Yes, I suppose 
so, it ought to be sufficient." He tells you that UUman fol- 
lowed him out of the office, and being a perfect stranger in 
the city, having received Ullman's card, he went straight to 
his house and waited for him. UUman says he met him near 
the corner of Fayette and Calvert streets, coming from and 
going in the direction of Col. Fish's office. His testimony 
about the lawyer is to me perfectly incomprehensible. On 
page 311, he is asked, ''Did you say anything about a law* 
yer ?" "Yes, sir, I had a lawyer, Mr. John H. Ing " "You 
told Capt. French so." "No, I suppose he knew it." "Did 
('apt. French say anything about any lawyer?" "No, sir." 
On page 32fi, he is asked, "I. id your lawyer ever make appli- 
cation to any one ?" He answers, ^^Isuppose he did " "Do 
you know whether he did or not?" Answer, "At least he 
told me so." On page 323, he says, "My lawyer did not go 
witli me to Col. Fish^ but he went with me to Capt. French — 
Capt. French's office, several times." And thus his testimony 
stamls on p-ige 311, "I did not tell Capt. French I had a 
lawyer, nothing said about it." On page 321, "I suppose my 
lawyer did make application, at least he told me so;" and on 



39 

page 323, "My lawyer went with me to Capt. French's sev- 
eral times." You recollect this Marr's appearance, and the 
manner of his making his statements — "Over a year ago he 
left the South for Europe" — that was his own language — 
^^ my only object." Europe seems to have been the destina- 
tion of all these various parties when they were coming this 
way — and to recover from the Confederacy sick wives 
and children when they were going the other. But 
this man in particular, was bound for that point ; it was his 
sole object, in leaving the Confederacy, and yet we find him 
still here, in no business, except four months in this case, 
which he says was his business. 

Hertzler, the other party named in these specifications, was 
not arrested by me, but at the Point of Rocks, and sent to me 
in like manner as the others, with no specific charges or 
any witnesses against him. He, like the others, had been 
arrested and held on suspicion, and from that time to the 
present, the government has not produced a single witness 
to show any ground upon which the party could have been long- 
er held, or that I acted in any other way than the circumstances 
of the case required. If you will look at tlie testimony of 
Ullman, in reference to this branch of the case, on [)ages 
382, 383 and 384 of the record, you will find a complete 
history of this case, what 1 said and what I did. That it 
was in this case that Mr. Stein, of the firm Stein & Bros., 
a very rich house, interceded, and was a witness examined 
at the hearing, and he (Ullman) is unable to say, that his 
interference had any influence in obtain ng their release, as 
other parties had interfered besides himself, and the true 
character of these transactions is biougiit out by the an 
swer of the witness to a question by the Court on i>age 436, 
"Did you know before you went to the office with these men 
to receive the money, that the money would be returned to 
them?" Answer, "I did not, sir." And I submit, had 1 for 
a moment desired to have made money out of parties like these, 
with the thousands in my hands, I couhl have selected a safer 
and more satisfactory way than to have transacted my busi- 
ness with Mr. Ullman. 

10^/i Specification. — The tenth specification depends in a 
great measure upon the testimony already commented upon in 
connection with the 7th, 8th and 9th specifications, or more 
properly speaking, upon no evidence at all, as none has been 
offered to substantiate the charge contained in it. It charges. 



40 

that having, from time to time, a large number of prisoners 
in my custody, and large sums of money in my possession, 
&c., I did knowingly permit one. B. F. Ullman to have free 
access to such prisoners, for the purpose of selling to them his 
services in obtaining lor them their release, and did refuse au- 
dience to responsible counsel iu their behalf, and did refuse to 
release the parties, or return them their money, until they 
had })aid, or agreed to pay, said Ullman large fees for his ser- 
vices in their behalf. There is no evidence ofl'ered, whatever, 
on the part of the prosecution, to sustain this charge. 

Mr. I Uman positively denies it, and says I had no knowl- 
edge whatever ot his arrangements with parties outside, and 
there is no evidence in the case which proves that upon any 
single occasion did 1 ever allow Mr. Ullman to visit a prisoner 
in my custody. Such never was the fact, and no witness can 
or has been called to prove it. An attempt was made by the 
prosecution to prove this part of the case by the witness Park- 
er, but this, as was the attempt made to prove by him the 
charge made in reference to the Wenner goods, has proved a 
miserable failure, he does not undertake to refer to but one 
instance, and in that 1 have already shown he is fatally con- 
tradicted by tlie witness Ullman, as also by Hertzler himself, 
ana that his own statement contradicts itself. Had the evi- 
dence which lie gives iu reference to this subject, fallen from 
the lips of a respectable and credible witness, it would then 
even have leached no practical result, as it fails entirely to 
prove anything ; it is the most miserable apology for an effort 
to condemn a man without evidence that it has ever been my 
fortune to witness. 

I am not heie to blame the witness, Parker, I desire to have 
nothing to do with him; but I do protest against the relying 
upon any one just fresh from the cess pools of corruption, to 
blacken the name and reputation of any man. This immacu- 
late Parker, who hides behind the protection of the law, to 
shield iiimself from being criminated iu the meanest kind of 
pilfering, whose reputation and character is offensive to the 
moral nostrils of the })eople, this man, when trying to bolster 
up tliis part of the case, aiid asked to describe those lawyers 
who had called to visit prisoners, so that I might be enabled 
to call upon them for the truth of the matter, in his sneering, 
haughty manner, says, "I never considered them of sufficient 
importance to take notice of tliem ; 1 can't describe them." 
Yet i am to be tried lor not giving them audience, and pay- 



41 

ing them proper respect and attention, when the witness for 
the government, and the man having charge of the prison- 
ers, did not consider them worthy of notice, or of sufficient 
importance to leave their names, or have fixed upon his 
mind their appearance. And the prosecution is unahle to 
give either name or description of those who were so badly 
treated at my hands. Not one has been found to testify to 
any such facts, though they have ample opportunity to give 
in their evidence in Baltimore, and sufficient public notice 
of that opportunity. Not a breath comes from the lips of 
any one except from Parker, and his is but the faint breath- 
ings of a dying man. 1 propose to leave him in company 
with his host of imagined lawyers, that he may in silence 
enjoy the utter contempt with which he regards that class 
of the community, simply reminding him, that if he allows 
himself to become impregnated with the atmosphere of con- 
traband rooms, he may, at no distant day, require their 
services, when he may be unable to decline answering upon 
the ground that it may criminate himself. 

llth Specification. — The Uth specification is the one charg- 
ing me with having received four hundred and eighty dollars 
from detective White, knowing-at the time that it was a bribe 
paid to said White to allow certain parties to go South, and 
after receiving it, that I discharged said parties, and sent them 
North. I need only refer you to the evidence in reference to 
this charge. I did receive this money, and by the order of 
the Commanding General, I ordered it to be confiscated to the 
use of the government, and returned it in my account as so 
much money received, which was paid as a bribe, and being 
so paid, confiscated to the government, and in relation to 
which I made ray full report to the Commanding General and 
received his approval, and in doing this, I only pursued the 
policy which had been acted upon by others in the service of 
the government, who treated money paid as a bribe, the law- 
ful property ot the government. I accounted to the govern- 
ment for the money received, entering it in the account as a 
bribe paid to the detective. 

The specification is at fault in charging that / discharged 
the party. I sent him under guard to the Provost Marshal 
at Philadelphia, where he was discharged, by giving his pa- 
role not to go South of a certain line during the rebellion. 
Be desired to go South ; he was sent North, as a punishment, 
which, as the Commanding General has explained to you, 



42 

was the practice of the department in like cases, where parties 
desired to go South, they were sent North, and where they de- 
sired to go North, they were sent South, if that was deemed 
the proper punishment. And in looking at the testimony of- 
fered against me in this connection, one fact has been forced 
upon my mind, that whenever any one was to be approached 
with a bribe, it was one or the other of the men by whom I 
Avas surrounded. Those offering the bribes seemed to know 
their men, whilst not a man has been produced who ever 
dared to make me such an offer. 

"i^tli Specification. — The 12th specification is abandoned. 

\?,tli, \Uh and loth Sjyecijications — May be considered to- 
gether ; they relate to the sending of parties South. The 
general practice of the department, during the spring of 1863, 
has been explained by ttie General Commanding, and that 
from his general instructions, I might be considered as having 
the matter within my own discretion. That practice was con- 
tinued until it was found it would be necessary to put a stop 
to it, and the practice was discontinued. The General., testi-. 
fied, that during the time it continued, his general orders to 
me were of such a character as to leave that matter, a^; also 
other matters appertaining to the office, to my discretio.n. ;. he 
could not undertake to act in individual cases, and those mat- 
ters were left to be disposed of by the proper officers. . .These 
specifications also charge, that the parties were sent South at 
the request of one B. F. Ullman,' who had taken a fee for ob- . 
taining such passes, which was known to me, and that the 
parties were sent by the direction and procurement of myself. 
The theory of the prosecution is, that 1 was here prostituting 
my office to the same base and sordid influence of Ullman ; 
that in direct violation of my duty, I was violating every 
principle of action by which I should have been governed, and 
rendering myself liable, not only to the censure of my Com- 
manding General, but to punishment for proving false to the 
trust reposed in me ; that I was actuated by impr<^per mo- 
tives, and that 1 caused those things to be done for a sinister 
purpose. Now, what is the evidence in the case upon these 
points, for by that evidence you are to be governed ; you can- 
not go beyond what the evidence warrants. Adopting the 
theory, that I caused this to be done, and that it was an im- 
proper act, that I did it from an improper motive, in viola- 
tion of the rules of the department, that I did it to benefit 
myself, %vould it be consistent with such a thfiory, that I 



43 

shoulcVliave published it to the world, to every one in the of- 
fice, that I should have employed those in the office to do 
those acts I knew to be illegal, and with the self-consciousness 
that I was doing it for private gain— and bringing it home to 
their knowledge, should I have made it matter of official re- 
cord, spreading my own vile actions open before the world, 
would I have detailed a guard, when my mere name to a pass 
would have been all that was needed? But the evidence of- 
fered by the prosecution, negatives the entire charges, and 
shows conclusively I had no knowledge in reference to these 
matters. The fourteenth specification charges, that Lewis 
Morse was sent by my direction and procurement. Now look 
at the testimony of .vlorse for a moment, and see how the mat- 
ter really was. His testimony is found commencing on page 
643 of the record. 

He applied to Ullman — Ullman told him to call at 8 o'clock 
in the evening. Mark the hour. The witness proceeds to 
say, *'I did call at that hour, and he took me to the office. I 
saw Capt. French there, and my baggage was examined, and 
I was sent to the depot. I did not see Col. Fish at all, whilst 
I was in Baltimore. I was going to bring away my brother." 
That is the testimony of this witness upon this point, corrob- 
orated by Ullman, who says, he never spoke to me on the 
subject, all his interviews, in relation to it, were with Capt. 
French, and that I knew nothing about it, to his knowledge. 
Add to this the orders sending them South, and detailing the 
guard, one signed by the express order of Capt. French, in 
my absence from the office, and after my business hours, and 
the other by Lieut. Stirling. Is it not drawing largely upon 
the imagination to charge that the parties were sent by my 
direction and procurement, actuated by corrupt and improper 
motives ? Again, I ask you to look at the testimony. Thos. 
Bernhard Rees, another of the parties charged with having 
been sent South by me. It commences on page 303 of the re- 
cord. He states, "I went to the Provost Marslial's office with 
Ullman ; I saw Capt. French, and he questioned me — he told 
me to report at 2 o'clock with my baggage. This was ray first 
interview with Capt. French, and I understood, from being 
told to report with my baggage at 2 o'clock, that it was all 
right. I took that for granted, and Ullman said it was all 
right. I reported with my baggage, which was examined, 
and then told to come back at seven, which I did. I did not 
see Col. Fish at all during the time I was in Baltimore." 



44 

And then the witness was asked this question, *'Did Capt, 
French leave the room at any time during the time you were 
there?" And he answers, "Not to my recollection." 

The other witness examined in reference to this point was 
Mr. Nelson, from Boston, and I call your particular attention 
to his testimony. It is found commencing on page 299 of the 
record. His wife and children were lying ill at Richmond, 
and he says, "I was anxious, to go and bring them up. I 
applied to Ullman ; he went to the office with me. I had a 
carpet bag and a dress for my wife with me. I asked one of 
the officers if I could take that with me; he said, '7 could take 
anything Hiked.' I got there and found my child was dying. 
I saw a few officers in the office, one a Captain and one a 
Lieutenant, who examined by baggage. I did not see Col. 
Fish." There were with this witness the other parties named 
as having been sent South by me, and this witness states, that 
after this interview with the Captain and Lieutenant, they 
did nothing more until evening, when they left, and the or- 
der, sending them South, was signed by the witness, Thomp- 
son, in my absence, under the express orders from Capt. 
French. 

The Court asked of this witness, this very important ques- 
tion, "Whilst you were in the office with Capt. French, did 
Mr. Ullman leave to go out?" He answers, "A'o, he loas 
there ail the time." Thereby corroborating what Ullman 
says, that he never approached me on the suliject, and that I 
knew nothing about it ; and he is then asked by the Court, 
"With whom did Mr. Ullman have the conversation in the 
office?" And he answers, ''I believe it was with a Lieu- 
tenant." 

These are the witnesses examined in reference to their go- 
ing South. You may add to this, the positive testimony of 
Ullman, saying, that I had notliing to do with these transac- 
tions, that I knew nothing of his arrangements, and then the 
orders sending them South, and detailing the guard, and I 
have nothing more to say upon tliese specifications, only, that 
had I been called upon to produce evidence to prove the nega- 
tive of these charges, and in doing so, I had offered the evi- 
dence that has been offered here, and a jury should have found 
against me, I do not hesitate to say, there could not be a judge 
found who would not grant a new trial ; and where, I ask, is 
the evidence that casts even a shadow towards sustaining the 
affirmative. 



45 

l&h Specification. — The 16th specification charges, that af- 
ter having caused the government brand to he removed from 
a certain sorrel horse, with intent to defraud, 1 did convert 
said horse to my own use. I hardly deem it necessary to say 
a word in reference to the specification. Their own evidence, 
that of the Quarter-master, is sufficient, and gives a full his- 
tory of the transaction. The horse was an exchange made by 
him with me, and the horse I gave him in exchange was 
turned over to the government at Washington. 

The eifort to remove the brand was as public as the act of 
any officer of the regiment, and I had as much right to do 
that, as I had to do any other act with property that had be- 
come my own, and I only desire to ask you one question in 
reference to this, and that is, that after all their labors and 
efforts, and considering what I have passed tlirough, and by 
whom surrounded, has it not struck you as a little remarka- 
ble, that my enemies should be obliged to resort to such a 
charge as this. 

17th Specification. — The remaining specification to this 
charge, and which is in the form of an additional specifica- 
tion, is the silver watch, valued at $15.00. The evidence of- 
fered by the prosecution disposes of this specification, by dis- 
proving the charge contained in it. It is charged, that I 
gave the watch to the witness, and in so doing, I misappro- 
priated the same. The witness denies this statement, and 
says, I loaned it to him, and tells you the reason. It is their 
own witness, and the only one upon wliich they have to rely 
in this matter, and as his testimony disposes of the raatttr, it 
is not necessary to comment upon it. 

But it exhibits one remarkable fact ; you see it is an addi- 
tional specification ; you note the charge, and the manner in 
which it must have been brought up, and the combination 
there must have been against me in the office, and how they 
caught at straws, and feeble ones at that, without proving 
that the watch ever belonged to the government, or that I 
was ever called upon to account for it : and they make this 
charge, which, from its character, must have originated with 
some one in the office. And the loaning of the orderly of a 
Avatch, of the value of $15.00, to enable him to perform his 
duty, in the absence of any other time-piece, has been so dis- 
torted by those around me, that the machinery of the govern- 
ment has been set in motion^ and I am court-martialled for 
such an act. If you desire a strong illustration of how my 



46 

actions have been distorted and misconstrued, and how Msely 
I have been represented, look, I pray you. at the 12th specifi- 
cation;, in reference to the Cohen arrest. Although abandon- 
ed, it serves to show how, in consequence of these misrepre- 
sentations, other parties have been led into error in reference 
to my conduct. I am charged with having caused the arrest, 
and then equally sharing the plunder, and that I refused to 
do anything in the matter of restitution, until I was threat- 
ened by public exposure by Mr. Pike, who, when called, says, 
I treated him as a gentleman, and doing all I could to have 
the money restored, and causing it to be done. Look at this 
charge, and then at the evidence in relation to it, and I leave 
it with you as a fair illustration as to how my actions have 
been misconstrued, and how charges have been brought 
against me. 

Charge 2d. — \st Specification. — We are now brought to a 
consideration of the second charge, which is, "The using false 
vouchers, knowing the same to contain false statements, for 
the purpose of obtaining the approval of false and fraudulent 
claims against the government, contrary to the statute in such 
cases made and provided " 

This is the charge, and upon which I am to be tried, and 
whatever may be the specifications under it,they are to be exam- 
ined in reference to it, that I knowingly used false vouchers, 
containing false statements, to realize fraudulent claims. The 
1st specification is in relation to the voucher for $300, fur- 
nished Thompson to go to Europe There is no questioning 
about my furnishing him with the |JOU, and at the same time, 
took the voucher and receipt, which are all in the usual and 
printed form. The money was paid to Thompson, and it was 
the duty of Lieut Sterling, who had charge of the accounts at 
that time, to make the entry, charging the government with 
the amount I had paid out to Thompson, and this he did, as 
Thompson tells you, and had it embodied in an account which 
he had made out before Thompson's return. This was the 
only entry tliat could have been made at that time, and the 
proper one ; so that all this was done before Thompson had 
returned, and yet the specification charges, that I knew he 
had not performed the service, and had not expended more 
than twenty dollars ; and this, when according to the evi- 
dence, I was obliged to telegraph him to borrow money in 
Montreal. 



47 

2c? Specification.- — The 2d specification charges, that I caused 
the said Thompson to make and sign an account against the 
United States, and receipt in writing for ninety-six dollars 
and ninety -four cents, for expenses, &c., of said trip, when 
I knew that said trip was not made in the service of the 
United, but that a large portion of it, viz : from New York 
to Montreal, was made to escape arrest, and that I certified 
to said account for the purpose of procuring the allowance 
of a ftilse and fraudulent claim against the United States. 
Comment is unnecessary upon this specification. Taking 
them both together, the facta in relation to them are very 
few and simple, yet they are distorted, like every other ac- 
tion of mine, into all kinds of imagined fraud. Thompson 
had started for Europe ; he had received $300, which was 
charged to him ; when he returned, he made out his ac- 
count, including subsistence. He tells you that I refused 
to allow it, telling him to make out his account for actual ex- 
penses, and that his subsistence would be met by way of his 
salary, as an agent of the government. Tliis was done, and 
the bill rendered accordingly, which was right aud proper. 
When tliat was charged to the government, it presented a 
new state of tJacts, and a change should have been made in 
the former entry by Lieut. Steiding, and to make the trans- 
action properly balance, the item of $300 should have been 
charged to me. It was properly charged to the United 
States when Thompson received it. I paid it to him- and 
in point of fact, never received a dollar back. But on his 
return, and making the entry of actual expenses, the former 
one should have been transferred, in order to make the entries 
stand correct — and I should have to look to Thompson for the 
difference between his actual expenses and the three hundred 
dollars, foi which he was bound to account to me. I ordered 
this to be done, as Thompson tells you, and had it been done, 
there would never have been any confusion in the entries 
made in the accounts. The theory of the specifications, how- 
ever, is, not that they were improperly entered in the account, 
but that they were false accounts in themselves, which I caused 
Thompson to make out for services never performed. I do 
not think these specifications need more notice. But in rela- 
tion to the account generally, I beg leave to say^that after 
its going through so many hands to be put in proper order, 
and pretended to be friendly by the auditor appointed to ex- 
amine it for. my signature — you have at last discovered, at the 



48 

latest moment of the trial, that it is all wrong from begin- 
ning to end, and that instead of attempting to swindle the 
government, the balance is largely the other way. Although 
this may not speak well for proficiency in hook-keeping, or 
proper attention to it upon the part of those through whose 
hands it has passed, yet it completely annihilates the theory 
of fraud connected therewith, and with which alone you have 
to do. 

3d Specification. — The third specification is in relation to 
the entry of nine hundred and ninety-eight dollars, charged 
as counterfeit and broken bank bills. No evidence has been 
offered in reference to this, and of course needs no comment. 

3d Chakge. — The 3d charge I do not understand, as relied 
upon. It relates to the money received from A. Gr. A. Con- 
stable, belonging to deserters. The testimony of Mr. Dun- 
ning, and the letter book, show the practice of the depart- 
ment in relation to that, and in what manner it was disposed 
of. I have never been called upon to dispose of it in any other 
way, or to render any other account. It is alleged as belong- 
ing to the United IStates, when in fact, it belonged to the par- 
ties from whom it was taken, and always paid over to them, 
after they wtre received back in the army, and their identity 
established. 

I was arrested the same day Major Hayner came from the 
Eastern Shore, to assume the duties as my successor, having 
been appointed on my resignation. I did not see him before 
my arrest, and had no opportunity to turn over to him, or to 
any one else, any papers whatever ; not even the opportunity 
to obtain such as I desired to offer as evidence in my defense, 
and 1 have never yet been given an opportunity, or called 
upon, to turn over anything pertaining to the office. The 
list is now before you, containing the entries and officially 
endorsed. 

4th Charge. — The specifications connected with the 4th 
charge, 1 do not desire to discuss. I endeavored to discharge 
my duty according to my best judgment, and I protest against 
being made the subject of criticism by such a creature as Par- 
ker. His testimony, in reference to the ball, is proved to be 
a lie, by Marshal Van Nostraud and Capt. Morris. He says, 
I was there with a woman with me from Miss Emma Mor- 
ton's, and that I danced. You have all the circumstances 
connected with my being present upon that occasion, and the 
taking of the woman home, who was in a difficulty ; and all 



49 

this evidence proves, beyond the shade of the shadow of a 
doubt, that Capt. Parker lied, when he was upon the stand, 
and that lie knew it, when he was doing it. I have been to 
those places ; I endeavored to make myself acquainted with 
them, and the inmates of the houses, not in a manner to dis- 
grace the service of the United States, which is the only of- 
fence known to military law in connection with such places, 
but to get that information best obtained in such places, and 
which was of importance to the service. You have the testi- 
mony of the Commanding General upon that subject, which 
fully sustains me in my course. The most important inform- 
ation I ever obtained, was through such sources, and there is 
now a party in confinement at Fort McHenry, from the South, 
Lieut. Col. Lamar, 17th Louisiana Infantry, who had been 
in the neighborhood of Washingtpn and Baltimore for months, 
obtaining information of the fortifications, and whom the War 
Department had used every efibrt to trace out, and was finally 
arrested by myself, on information derived from an inmate of 
one of those houses. 

I have now, in a hurried manner, called your attention to 
some of the leading points of the specifications in the order in 
which they are presented ; there is, of course, a host of testi- 
mony to which I have not called your attention. You will 
have that testimony befoie you, and I ask you to carefully ex- 
amine and compare the testimony of a witness with itself, then 
with the testimony of others, and then apply it to the specifi- 
cation in question, recollecting that I am not upon trial for 
anything except the specific charges presented. When you 
proceed to examine this case for a final result, I ask you to 
analyze first the specification upon which you are about to act, 
ascertain exactly and minutely what is charged in the specifi- 
cation, and then you will know exactly what it is necessary to 
prove under that charge, and you will be prepared to exam- 
ine the testimony and ascertain whether the precise thing ne» 
cessary to be proved, is found in the evidence, to be established 
as the rules already referred to require. I am to be tried 
upon nothing but what is specifically charged against me, and 
you are to be governed strictly by the issue that is made up. 
No false issues are to be made. The question is not, whether 
Mr. Ullman, in his own language, sent me a present or left it 
on the desk, but did I do certain acts, charged specially in 
consideration that he would give me the money, or property, 
named in the charge. Does the evidence prove that I allowed 



€0 

&y official conduct to be controlled as cliarged, and for the 
consideration named in the specification? The question is 
not whether Capt. French saw me wearing three hundred and 
sixty-five different diamonds, or whether Lieut. Parker saw 
me wearing eight thousand dollars worth ; hut the question 
is, does the evidence in the case establish the fact that I em- 
bezzled a certain diamond cluster pin, which had been seized, 
and converted the same to my own use, when it was the pro- 
perty of another, as is alleged in the specification. This is 
the way in which every specification is to be treated, and by 
so doing, the record will be strictly adhered to. 
• There has been a great deal of testimony offered, having no 
reference to any of the specifications. Capt. French is asked, 
if he had seen me wearing diamonds, and if I changed fre- 
quentlyy and' in this instance, Capt. French lost himself, he 
abandoned his usual caution, he was thrown off his guard, 
and the true man was unmasked in his answer. You will re- 
collect-that the answer was given with unusual quickness for 
this witness. He answers, "I should say he had a new dia- 
mond on nearly every time I saw him." Now this was either 
true or false. If true, then Capt. French saw me with 365' 
diamonds on, as he saw me every day in the year. If it was 
false, he knew- it at the time he swore to it, but it came out 
unguarded, it was an accidental letting out of the true man, 
by the merest accident. It was not in accordance with his 
usual style, as you could perceive, and he would undoubtedly 
have bee-n very thankful if he could have recalled it. There 
are witnesses who know just how far to go to have effect, and' 
they go no further, and they are very dangerous witnesses.. 
There-are others, like the witness Parker, who are not gov-' 
erhed by any limits ; your difficulty is to keep them within 
reasonable bounds and believing distance. Such witnesses' 
are never much to be feared, and the testimony of this wit- 
ness, together with his affidavit, furnishes a striking illustra- 
tion of this remark. You will perceive that in his affidavit, 
he does not mention a word about the opening of the valise,- 
and my disturbing the goods, to all those who were present. 
No mention was made of any such thing, but when he comes, 
here, and in addition to being a witness, is clothed with a lit- 
tle brief authority, and it is found that the Wenner goods, 
and the charge growing out of them, pinches, and is likely to 
fail, all that is necessary, is for Capt. Parker to learn the- 
fact, and jack knives, handkerehiefs, gloves and French. 



5^3 • 

covers are fl3'^ing in every direction." He had' not thbii'glit of 
it before, but now it is fresh and vivid in His memory. ' Un- 
fortunately for him, however, iii this respect, every one of the"' 
parties named by him, as being preisent upon that occasion," 
pronounce the statement utterly false, and they plainly tell" 
you, that in that particular he has indulged in what seems to" 
be with him a confirmed habit, tliat of lying. I wish you to 
examine carefully that affidavit^ — you* will be able to obtain 
valuable instruction. How this witness bore up against 
strong temptations, his moral heroism, that not even elegant 
diamonds could shake, his extensive knowledge, and means of 
information, are wonderfully displa,yed. He is able to say, 
that he knew of his own knowledge, that my expenses 
amounted to more than double my pay, and many facts equal- 
ly remarkable are found in that statement. ' ' 

In this affidavit, he gives an entirely different version of 
the Hertzler matter ; he does not even say, that Ullman saw*' 
him, but does Say, that those men had, as he should say,' 
$250,000, and Ullman requested me to release them, and that' 
I told him he need not trouble himself about the business, for- 
if the men were guilty, they would be held and the goods, 
confiscated. That is his account of this transaction, which he 
gives in his affidavit, and you recollect his present testimony- 
in reference to it. If he could only be- induced to make one 
more statement, it would be a matter of curiosity to compare 
the three together. I think the Court will agree with me in 
awarding due credit to the sagacity of Gol.' Olcott, when be- 
not only subjected Parker to the double oath system, but for- 
tified it by the certificate of credibility of Capt. French. If 
a gentleman came in, one oath was considered sufficient, or 
perhaps none ; but in other cases, two were administered, and 
according to that they failed to have a single gentleman be- 
fere them, because every affidavit taken there, bears the cer- 
tificate of Capt. French, when they tell you he was not pre- 
sent, when they either signed or swore to their affidavits. 

The object of the explanation, was to relieve Capt. French, 
but his conduct was not susceptible of any such explanation, 
and hence the absurdity ; for Col. Olcott would not for a mo- 
ment, wish us to understand him as meaning, that when a 
person came there who could not be believed on one oath, they 
would administer two, to bring him up to tlie standard 
point ; and yet such is the necessary result of the attempted 
explanation. According to this new system of administering 



52 

oaths, what would be the ratio, or how many would hare to 
be administered to certain parties who have been examined 
on this trial. Instead of numbering, I would suggest that 
they should adopt the measuring system, and in place of 
counting out the requisite number, you measure out the 
quantity required to meet the necessities of the subject. 
Many of the witnesses examined in this case would have 
given us no trouble in this respect, as they were perfectly 
accommodated in any form. One to be sure, preferred to 
keep on his hat, but the balance were satisfied with any 
way that might be the most convenient. But whatever may 
be the attempted explanation, the hand of Captain French 
is seen at every shuffling of the cards, and the only ques- 
tion with him was, whether the one or the other should 
be trumps. 

Having called your attention to the evidence bearing upon 
the several points involved in the cause, I do not intend to 
recapitulate ; it would be taxing your time and patience to 
too great an extent. You have seen the positions in which 
I have been placed, the difficulties I have had to encoun- 
ter, the dangers to meet, you have seen by whom I have 
been surrounded, and upon whom I have been obliged to 
rely, you have seen the opportunities they had of ruining 
almost any man, you have seen actions and conversations 
developed that could only have been done by those around 
me, and you have seen how t ley have been distorted and 
misconstrued, how false motives, attributed to actions, have 
been made to give tinge and color to those actions, and 
you have seen how this course, pursued by those around me, 
has caused charges to be brought against me, that should 
cause the blush of shame to rise upon the cheek of every 
honest and high-toned gentleman, you have seen the extra- 
ordinary eiForts made, and I ask you, as gentlemen com- 
posing this Court, is it not surprising that more of a doubt- 
ful or suspicious character could not have been brought 
against me. People of all kinds, of all faitlis, strangers to 
yourselves and me, have been called into requisition. 

It is an old saying, that you may set a rogue to catch a 
rogue. People may adopt this very doubtful policy if they 
think proper — my own opinion is, that if you have any volun- 
tary connection with a rogue in any way, you are sure to get 
the worst of it ; but I do protest against the employment of a 
rogue to degrade an honorable man into a would-be thief. 



63 

If a robbery has been committed, you pursue one course, but 
do not employ a rogue to establish in the first place the fact of 
the robbery having been committed, and then employ him to 
ferret out the thief — and above all, when he fails in his labors, 
do not pollute the altar of justice by offering him as a wit- 
ness to substantiate that which he has failed to do without it. 
In view of the character of some of the charges made against 
me, and in order that you may the better appreciate all of the 
surrounding circumstances, I desire to make some personal re- 
marks. 

[ Here read the statement of Col. Fish.] 

I have brought before you my reputation and character for 
honesty and integrity as a man. If they are to be entitled to 
no weight and consideration, then let it be known to the ris- 
ing generation of our country^ that all incentive to honorable 
action is removed, that those sterling qualities of character, 
which in the primitive days of our Fathers, were considered 
as a shield with which we could protect ourselves against all 
that envy, jealousy, hate or the machinations of our enemies 
could accomplish, are of no longer any account. I have laid 
before you my character as a soldier, and ask for it, at your 
hands, buch consideration as soldiers can give. And it is for 
you to say and determine, whether this is to be overborne and I 
am to be crushed by what had been ofi'ered upon this trial. 
If fall I must, I fall with the proud satisfaction, that as a sol- 
dier I have been true to the country that gave me birth, true 
to the cradle of liberty in which I was rocked, and true to 
those instructions under which I have been reared and educa- 
ted. That as a man, as a father, husband and child, I have 
been true to the obligations resting upon me. 

My cause, myself, and all I hold dear and sacred this side 
the grave, is about to be placed into your hands. You will 
not be able to discover all of the hidden springs that have 
been put in motion to encompass my ruin, but I think you 
may find sufficient in this record to furnish food for reflection. 
I ask to be judged as you would wish to be judged under like 
circumstances ; I entertain no vindictive feelings against any 
one ; I leave all to their own reflections, for another, higher 
than man, has said, "To me belongeth vengeance and re- 
compense ; their foot shall slide in due time, for the day of 
their calamity is at hand, and the things that shall come upon 
them, make haste." I now submit my cauae, myself, and all 
I have, into your hands, and in doing so, I cannot close with- 



out expressing to the members of the Court, my heart-felt 
thanks for the uniform kindness and courtesy, with which I 
have been treated through this long and laborious trial, and 
to those friends who have kindly furnished me with material 
aid in conducting this defence, and by their sympathy, have 
sustained me through the trying ordeal I have been called 
upon to pass, I now retire, with the fond hope that I may 
again go forth to do battle for my country, and that erelong, 
the hopes of wife and child, the declining faculties of an aged 
mother, may soon be revived by the noiseless messenger car- 
rying to them the glad tidings, that a father, husband and 
child has been restored, and tliat at last, justice has triumph- 
ed in this, a tribunal organized for its administration. 

WM. S. FISH, 
Colonel 1st Conn. Cavalry. 



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